As part of the investigation into alleged collusion between President Donald Trump's campaign and the Russians, Donald Trump Jr., was called upon by the House Intelligence Committee to testify about a meeting that occurred at Trump Tower between him and a Russian lawyer with purported ties to the Kremlin.
During his examination, Mr. Trump Jr. refused to answer questions regarding what he told his father claiming that it would violate the “attorney-client privilege.” Which is an interesting excuse given that neither President Trump or his son are lawyers.
As a Board Certified Civil Trial Lawyer, the attorney-client privilege comes up frequently in the course of depositions, particularly in cruise ship passenger accident claims against cruise lines like Carnival, Royal Caribbean, Disney, Celebrity, Princess, Holland America, MSC and Norwegian. Typically, the attorney-client privilege is asserted to prevent a party from discussing the conversations he or she may have had with his or her lawyer to facilitate the representation. For example, if a cruise line lawyer were to ask during my client’s deposition, what my client and I valued their slip and fall case for, or whether or not we wanted to go to trial - I would object and instruct my client not to answer on the basis of the attorney-client privilege.
In this case, the specific conversation between the Trumps occurred via telephone - and apparently, President Trump’s lawyers were on the line. But their mere presence on the call - or in the room, or even in the building does not automatically create a privilege and an excuse for refusing to answer the committee’s questions.
In other words, the presence of a lawyer is not intended to automatically create a cone of silence that will provide a shield to anyone who fears later about being questioned about a given conversation.
EXCEPTIONS TO THE ATTORNEY-CLIENT PRIVILEGE
And - if a third party is present that is neither the lawyer or client - the privilege can be deemed to have been waived. Which is why when we meet with clients we try to meet with them alone - without a friend present that may inadvertently destroy the protection that the attorney-client privilege is designed to afford clients represented by lawyers.
In Donald Jr.’s case, the presence of the Russian lawyer on the call - would have waived the attorney-client privilege. Which means that she can now be questioned about what was said by both Trumps.
Another exception to the attorney-client privilege is called a crime-fraud exception. Which means one cannot use privilege to shield criminal activity or to hide evidence. In other words, simply talking to an attorney about your intention to commit a crime or a fraud is not protected.
WAIVING THE PRIVILEGE
Just like the 5th Amendment privilege against self-incrimination, the attorney-client privilege can be waived. And many may wonder if the Trump’s have nothing to hide- why not simply answer the questions? Or, if there is a serious potential criminal implication, why not assert both the 5th Amendment Privilege as well as the attorney-client privilege? We most likely will never know.
If and when you ever need to speak to your lawyer about anything from an administrative law issue to a zoning dispute - it is important to always speak to the lawyer alone - or only in the presence of others who are also represented by the same lawyer or lawyers.