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The FBI raid on Michael Cohen’s law offices is the most noteworthy search warrant of 2018 for two reasons.  

First, because Michael Cohen was the president’s lawyer for years.  

Second, because it opened the eyes of many, to include some lawyers, to the fact that although there is an attorney-client privilege, it can be blown wide open when the lawyer participates in criminal activity with the client.

The attorney-client privilege protects communications between lawyers and their clients so that clients can share all their concerns, to include their criminal deeds with their lawyers without a concern that the lawyer will be compelled to reveal those communications. (See eg. Laura K. Schwalbe, Angelle Smith Baugh, Margaret M. Cassidy, Attorney-Client Privilege in Government and Congressional Investigations: Key Considerations and Recent Developments, American Bar Association Business Law Today, Jan. 10, 2019). The idea of the attorney-client privilege is to make sure the client can tell the lawyer all the facts so the lawyer can counsel the client to get in line and so the lawyer can properly defend the client without concern these communications will be later used against the client.

But, many do not realize that the attorney-client privilege does not protect communications between lawyers and clients if the lawyer is somehow assisting, facilitating, (or use whatever word you like) the client in committing crimes or covering up crimes (which is a crime.)

If that happens, the privilege is blown – lawyers should know that. And, they should tell their clients that. And, lawyers should not help their clients commit crimes. And, if the FBI or other law enforcement finds out and, has probable cause that a lawyer is committing a crime along with their client, law enforcement can apply for and obtain a search warrant signed by a judge so they can search the lawyer’s office, home, hotel room, car, storage facility – wherever one keeps their “stuff.”

Since the Cohen search made the “crime-fraud” exception so clear for many of us – it’s the most noteworthy search of the year.  

The intersection of law, business, criminal activity crime and ethics: why do some companies violate the law? what happens when they do? what is ethical? how do we get corporations to follow the law? can lawyers help and, if so, what is the lawyer’s role? Stay tuned, we’re going to address all of these issues and more in When the Writ Hits the Fan.

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