The news that the FBI raided the offices of President Trump's personal attorney Michael Cohen Monday caused many people to wonder how such a raid could be justified given the protections afforded under attorney-client privilege. The answer is this is an absolute violation of the attorney client privilege. This action by the DOJ, FBI and the special counsel is a direct threat to the US Constitution, our democracy, and our most cherished and ancient legal principals.
The attorney-client privilege was first recognized in the 16th century. Originally, the privilege seemed to be based upon the honor of the attorney and belonged to the attorney, who could waive it. During the 18th century, the courts found a new rationale in protecting the client from apprehension that his confidences might be betrayed. By the middle of the 19th century it was recognized that the privilege belonged to the client.
Ultimately it extended to any consultation for legal advice. The purpose of the privilege is expressed well in a comment to the Model Code of Evidence: "In a society as complicated in structure as ours and governed by laws as complex and detailed as those imposed upon us, expert legal advice is essential. To the furnishing of such advice the fullest freedom and honesty of communication of pertinent facts is a prerequisite. To induce clients to make such communication, the privilege to prevent their later disclosure is said by courts and commentators to be a necessity. The social good derived from the proper performance of the functions of lawyers acting for their clients is believed to outweigh the harm that may come from the suppression of the evidence in specific cases." ALI, MODEL CODE OF EVIDENCE,
The privilege has undergone periodic attack but the bar and the bench have been consistently alert to any attempt to narrow its scope. Every State Bar in the United States of America, every attorney, every judge should condemn this gestapo raid on an attorney's office in an obvious attempt to attack his client. This is a sad day for justice if our clients can't come to our office and feel secure in our discussion. Hoe are we as attorneys going to be able to advise our clients if they can feel secure in our conversations. The SCOTUS should immediately declare this raid unconstitutional and order all documents returned to the attorney and order an end to the special counsel and his witch hunt that he calls the "Russian collusion investigation"