FBI raids Trump lawyer's office

[GMDino]

(04-16-2018, 05:28 PM)michaelsean Wrote: I think I'm missing something here.  

It was an article on what attorney-client privilege means.

Here is what they referenced:

https://jenner.com//system/assets/assets/10391/original/2017-Jenner%20and%20Block%20Attorney-Client%20Privilege%20Handbook.pdf

Quote:It is generally recognized that the privilege belongs to the client and that the client has the sole power to waive it. See In re Seagate Tech., L.L.C., 497 F.3d 1360, 1372 (Fed. Cir. 2007) (abrogated on other grounds); Douglas v. DynMcDermott Petroleum Operations, Co., 144 F.3d 364, 372 (5th Cir. 1998) (in-house counsel breached ethical duties by revealing client confidences during the course of an investigation into alleged Title VII violations). However, an attorney may assert the privilege on the client’s behalf. Haines v. Liggett Grp., Inc., 975 F.2d 81, 90 (3d Cir. 1992). But the attorney cannot assert the privilege against the client’s 72 wishes. See Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612, 618 (7th Cir. 2010) (noting that “[t]he privilege belongs to the client, although an attorney may assert the privilege on the client’s behalf”); Evan Law Grp. LLC v. Taylor, No. 09 C 4896, 2011 WL 72715, at *6 (N.D. Ill. Jan. 6, 2011) (lawyer may not assert the privilege for self-serving interests; rather, he may only assert the privilege to benefit the client). 

Quote:The party asserting the privilege bears the burden of establishing that a communication is privileged. In re Excel Innovations, Inc., 502 F.3d 1086, 1099 (9th Cir. 2007) (“Ordinarily, the party asserting attorney-client privilege has the burden of establishing all of the elements of the privilege.”); In re Grand Jury Subpoena, 415 F.3d 333, 338-39 (4th Cir. 2005) (“The burden is on the proponent of the attorney-client privilege to demonstrate its applicability.”); United States v. Bisanti, 414 F.3d 168, 170 (1st Cir. 2005) (same); United States v. BDO Seidman, 337 F.3d 802, 811 (7th Cir. 2003) (“The mere assertion of a privilege is not enough; instead, a party that seeks to invoke the attorney-client privilege has the burden of establishing all of its essential elements.”); von Bulow v. von Bulow, 811 F.2d 136, 144 (2d Cir. 1987) (same); United States v. Nat’l Ass’n of Realtors, 242 F.R.D. 491, 493-94 (N.D. Ill. 2007) (“The party claiming the privilege has the burden of proving all of its essential elements.”). Once the party asserting the existence of the privilege establishes a prima facie case that the privilege applies, the party seeking the production or other disclosure of the protected information bears the burden of establishing that an exception to the privilege applies. See, e.g., Mass. Eye & Ear Infirmary v. QLT Phototherapeutics, Inc., 412 F.3d 215, 225 (1st Cir. 2005). Inadmissible evidence may be considered by the court while determining whether the preliminary facts of the privilege have been demonstrated by the proponent of the privilege. FED. R. EVID. 104(a); see also United States v. Zolin, 491 U.S. 554, 566-67 (1989) (allowing court to look at potentially privileged and therefore inadmissible documents to determine if privilege exists). 
Blanket objections are not sufficient. 

The article I read is from a liberal site but here is their explanation of the above legalese:

Quote:However, before Judge Wood reaches the question of the applicability of waivers or exceptions to communications between Mr. Cohen and his clients, Mr. Cohen faces even more basic problems invoking the privilege.


Judge Wood will doubtless be asking herself and the parties some version of this overarching question: Are Mr. Cohen's records at issue communications with clients who consulted him in his capacity as an attorney for legal advice?
To answer this question, it is important to understand, first, that the privilege belongs to the client, not the attorney, and the client alone has the power to waive it. The client decides whether to invoke the privilege or waive its protection. An attorney can't invoke the privilege over a client's objection or waiver.


So, at the threshold, Judge Wood will determine whether Cohen's communications and the records at issue are to and from - and for - a client. If the judge can't find a client for purportedly privileged materials, there is no client who may invoke the privilege.


This isn't a metaphysical question. For example, the search of Mr. Cohen's office and residence sought materials relating to the Stormy Daniels negotiations, contract, and payment in which Mr. Cohen was involved, presumably to determine whether bank-fraud or campaign-finance crimes occurred.


Mr. Cohen has claimed that he made the payment from his own funds. And Mr. Trump has never addressed whether he had an adulterous relationship with Ms. Daniels and has personally denied knowledge of any payment to her ensuing from any contract with Ms. Daniels.


If Mr. Cohen can't prove that Mr. Trump (or another person or entity) is his client for his communications and other records relating to Ms. Daniels, then he has no client who can invoke attorney-client privilege to protect them. More generally, if Mr. Cohen has other records for which he has no discernible client, those will not be afforded the protection of the privilege.


In short, no client, no attorney-client privilege.


Two additional problems cascade directly from the absence of a client. First, if Cohen has no client, he isn't communicating for the purpose of providing legal advice or assistance to a client to which the privilege might apply. Second, if he is not communicating to a person or entity in order to provide legal advice, then it is arguable that he is not acting in his capacity as an attorney.



In other words, Cohen's claim of privilege as to the Daniels materials could fail on at least three different grounds: (1) there is no client that can invoke the privilege; (2) there is no communication with a client for the purpose of providing legal advice; and, therefore, (3) Mr. Cohen did not communicate as an attorney with a client.

(All bold emphasis that of the author.)