The Executive Suite: Mueller, Manafort and Attorney-Client Privilege

The attorney-client privilege is a common law privilege against testifying about the content of confidential communications between clients and their attorneys, made for the purpose of obtaining or providing legal assistance. The privilege has been recognized by the Supreme Court in the Upjohn [1981] and Swidler and Berlin [1998] cases, among others. It is perpetual (surviving the death of the client, or of the lawyer). But it is waivable, and it has one other significant exception.

The privilege may be waived (expressly or impliedly), by the client or by her attorney. Voluntary disclosure will waive the privilege, as will invocation of the otherwise-privileged communication by the client or her lawyer. If the lawyer waives privilege negligently she may be civilly liable to her client and also subject to professional responsibility (for incompetence).

And there is one big exception to the privilege: the so-called "crime fraud exception." Privileged information may be waived, but information covered by the crime-fraud exception is non-privileged from the get-go. Clients may reveal past criminal or fraudulent conduct to their attorneys in total confidentiality, but ongoing or intended future crime will not be protected. This is a corollary of the prohibition against assisting a client to commit a crime (§ 1.2(d) of the Model Rules of Professional Responsibility).

The Restatement (Third) of the Law Governing Lawyers provides that the exception applies when a client:

a) consults a lawyer for the purpose, later accomplished, of obtaining assistance to engage in a crime or fraud or aiding a third person to do so, or

b) regardless of the client's purpose a the time of consultation, uses the lawyers; advice or other services to engage in or assist a crime or fraud.

Note that the crime-fraud exception does not require that the lawyer be an accomplice to the crime or fraud. The lawyer may be duped, or may be responding to a "law book" question the answer to which, unbeknownst to the lawyer, will be used by the client to facilitate the commission of the crime or fraud. If the client is trying to "go straight" or rectify the crime or fraud, however, the communication is privileged.

So a client seeking advice to become or remain a fugitive from justice (an ongoing crime) will be unable to invoke privilege for communications to his lawyer seeking information about "loopholes" in our extradition treaties with certain other countries. But a client seeking to return stolen property should find her confidential communications with her lawyer to be privileged.

At the request of the Department of Justice's special counsel Robert Mueller, Chief Judge Beryl Howell of the U.S. District Court for Washington, DC ruled on October 2 that the crime-fraud exception applied to communications with Paul Manafort's ["Target 1"] and Richard Gates' ["Target 2"] attorney, which presumably led that attorney to respond to inquiries about why Manafort and Gates had not filed foreign-agent lobbying registrations in compliance with the Foreign Agent Registration Act. Failure to file is an ongoing crime. [The Chief Judge did not name the attorney, who is called "witness" throughout the ruling. But I note that CNN reported in August that Mueller was seeking the testimony of Melissa Laurenza, a partner at Akin Gump and an alumna of my law school.] Chief Judge Howell said some facts, which have been redacted from her opinion, "establish" that Manafort's and Gates's denial of U.S. activity for Ukraine's Party of Regions "is false, a half-truth, or at least misleading because evidence shows that Target 1 and Target 2 were intimately involved in significant outreach in the United States on behalf of ... the Party of Regions and/or the Ukrainian government."

In other words, at this point, the Chief Judge has concluded that the attorney was likely duped by her clients. What they told her to dupe her, and get her to (presumably unwittingly) advance their fraudulent scheme, is therefore non-privileged. [What if she wasn't duped? What if she connived with her clients to perfect their crime? See below.]

The Supreme Court has ruled that an invocation of the crime-fraud exception by a trial judge is not subject to immediate appeal. "Witness"'s recourse, if she believes the ruling is erroneous, would therefore be to refuse to comply with the ruling, be condemned for contempt, and then appeal the contempt ruling. The appellate court would then decide if the redacted facts do indeed give rise to the crime-fraud exception.

From what is publicly known, the Chief Judge's ruling, it seems to me, is correct. So one can ask one's lawyer, in full confidence, if a Sunday-closing law is unconstitutional. One can ask one's lawyer in full confidence what the penalties are for violating the Sunday-closing law. But one cannot, in full confidence, communicate to the lawyer that one's store is currently closed when it is in fact open, whether or not the lawyer knew of this fact. [If the lawyer did know, then of course she is an accomplice to the crime, properly chargeable and also subject to disbarment by Bar authorities. Nothing in the Chief Judge's ruling implies that situation obtains as regards the "Witness."]

Note, finally, that the Chief Judge allowed Mr. Mueller to ask of the "witness" only seven of the eight questions he had proposed. She ruled that a question about whether "witness" made any record of her conversations with Manafort or Gates violated a protection against revelation of mental observations, or "opinion work product" protection. The thoughts of a lawyer are sacrosanct unless that lawyer's thought are part of a criminal conspiracy; and, as stated above, the Chief Judge has, at this point, no reason to infer such a conspiracy existed.