Updated on: August 17, 2018

Cohen Raid Shines National Spotlight on Attorney-Client Privilege

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Original story posted on: May 9, 2018

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Misinformation abounds in wake of execution of search warrants.

The recent raid on President Trump attorney Michael Cohen’s office has brought much discussion about the attorney-client privilege to the forefront of the nation’s consciousness. But many of the statements being made are categorically incorrect.  

Fox News anchor Sean Hannity asserted that “Michael Cohen has never represented me in any matter. I never retained him, received an invoice, or paid legal fees. I have occasionally had brief discussions with him about legal questions about which I wanted his input and perspective.”

Contradicting his claim he never paid money, he recently told his listeners, “I might have handed him 10 bucks (and said) ‘I definitely want your attorney-client privilege on this,’ something like that.” The Washington Post called that the “Breaking Bad” definition of attorney-client privilege. And bad it is.

Mr. Hannity seemed to be setting up two tests: one based on the exchange of money, the other based on the formality of the engagement. Some misguided commentator on CNN did the same, with a focus on the formality of the relationship. Both are totally wrong. Nether the exchange of money nor some formal engagement are required for a communication to be protected by privilege.

If you make an inquiry with the expectation that you might engage me as counsel, that request is privileged even if you ultimately never engage me. It certainly doesn’t require the exchange of money. That should be obvious: Pro bono clients are protected by privilege even though they don’t pay.

The real question is whether the person engages an attorney with the expectation that he or she may possibly serve as legal counsel. Note that this does not mean every conversation you have with someone who happens to be a lawyer is privileged. If, knowing my proclivity for storm chasing, you called and asked whether there was likely to be a tornado out in your hometown?That is seeking meteorological opinion, not legal advice. It would not be privileged. 

Similarly, assume you type a question into the chat box during a Monitor Mondays broadcast. Is that communication privileged? No. Because the chat box is public, your request isn’t confidential. But if you send me an email right after the broadcast with a question, that changes everything. You are confidentially seeking my legal opinion at that point, and you might engage me. Even if I can’t accept the job because of conflicts, that inquiry is still confidential, and I can’t disclose it.

Perhaps the grayest line exists regarding business advice. Generally, business advice from legal counsel isn’t privileged. Obviously, there can be times when there is an interesting intersection between legal and business advice. If you called me and said, “I’ve heard you argue that the government can only go back 48 months on an overpayment. Do you think we should go back six years, as required by the 60-day rule, or 48 months when we do a voluntary disclosure?” My response is likely to include both a legal recommendation and thoughts about what I would do. 

The better argument is that this entire response is privileged as legal advice. If your question is, “we’ve heard that payor X is really slow paying claims, would you enter into a contract with them?” There is a good argument to be made that my reply to that question would be business advice and not protected. The bottom line is that anytime you speak to a lawyer confidentially seeking his or her legal opinion, that inquiry should typically be privileged – unless your inquiry is intended to further a crime. Neither the exchange of money nor any formal agreement is required.  

It appears that the two big questions present in the Cohen situation are first, whether Mr. Cohen was acting as a lawyer or a business advisor, and second, whether the legal inquiries were intended to advance a fraud. If a client is seeking to advance a fraud, related advice from counsel is not protected. Your inquiry is protected if you are trying to comply with the law, but it isn’t if you’re not.

It can be a risky business if you try to get legal advice from large media outlets. And make sure you know the limits of the attorney-client privilege. 


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David M. Glaser, Esq.

David M. Glaser, Esq., is a shareholder in Fredrikson & Byron’s Health Law Group. David helps clinics, hospitals, and other healthcare entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David’s goal is to explain the government’s enforcement position and to analyze whether the law supports this position. David is a popular panelist on Monitor Mondays and a member of the RACmonitor editorial board.

 

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