I wasn’t going to weigh in. But attorney-client confidentiality confusion is back in the news. This time it’s over President Trump’s personal lawyer Michael Cohen and Fox News Talk Show Host Sean Hannity and whether there’s an attorney-client relationship between them. So comment I will.
However, in place of comprehensively revisiting the topic again here, I direct you instead to one of this blog’s most highly read posts, “When is a client a client? On what establishes an attorney-client relationship.” It’s on point and why I decided not to let the moment pass, especially since pop culture (see below) and even some lawyers remain muddled about the subject.
Lawyer, former judge, and Hannity’s Fox News compadre Andrew Napolitano typifies the misconceptions. Discussing this week’s revelation that Hannity was Cohen’s “mystery client” on “Outnumbered Overtime” with host Harris Faulkner, Napolitano pushed back on Hannity’s claim he “may have” paid Cohen $10 to get attorney-client privilege. Napolitano told Faulner, “I must tell you that that is a myth. The attorney-client privilege requires a formal relationship reduced to writing for a specific legal purpose.”
Having someone pay a lawyer a buck or ten-spot to inoculate a conversation as a privileged attorney-client communication is a common contrivance in novels, movies and on shows like “Better Call Saul” and “Breaking Bad.”
But the good judge is wrong. You don’t need a writing. In a nutshell, the bright-line test to create an attorney-client relationship is whether or not the person consulting a lawyer does so “with a view to obtaining legal services.” A signed attorney-client contract or the payment of a fee — whether $1, $10 or $10,000 — isn’t relevant to establish that relationship.
Why does this matter? It matters when a client becomes a client because of the protections of the attorney-client privilege upon which clients rely. For an attorney-client privilege to be raised, an attorney-client relationship must exist.
For more about “the myth of the dollar bill as a prerequisite to the formation of a privileged relationship and the myth that all communications with a lawyer are protected,” see “Better Call Saul: Is You Want Discoverable Communications: The Misrepresentation of the Attorney-Client Privilege on Breaking Bad” and “Sean Hannity’s idea of ‘attorney-client privilege’ was right out of Breaking Bad.”
____________________________________________________________
Credit: Sean Hannity, caricature by Dokey Hotey, at Flickr via Attribution-ShareAlike 2.0 Generic License.