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When Waiving Attorney-Client Privilege Is Not a Good Idea

By William Vogeler, Esq. | Last updated on

When President Donald Trump waived the attorney-client privilege for tapes Michael Cohen made of their conversations, the legal community gasped -- but not for the reasons everybody else did.

Everyone knew the tapes, including a discussion to pay hush money to a former Playboy model, could become Trump's Watergate. They could be his Waterloo. They could be...

Wait, lawyers exclaimed. Did the President say "cash?"

Not a Good Idea

Seriously, it's usually not a good idea to waive the attorney-client privilege. Everybody knows that.

However, every lawyer knows the privilege card does not always work. For example, you can't use the privilege as a shield for the purpose of committing a crime or a tort.

It's also not the same as the duty of confidentiality, and some lawyers don't really know the difference. Law professor Grace Giesel says it starts in law school when students get "a little fuzzy on that."

"It is not at all unusual to hear attorneys talk of information being 'privileged' when the information might be protected by the duty of confidentiality but is in no way protected by the attorney-client privilege," she wrote for the Lawyerist.

Privilege v. Confidentiality

The attorney-client privilege is a creature of common law that protects communications involving legal advice. That information cannot be legally compelled.

The duty of confidentiality is typically imposed by statute and can protect more information, such as information about a client. But a judge can compel that disclosure without violating the privilege.

In the Trump-Cohen case, the President's lawyers said they waived the privilege -- not confidentiality. After all, Cohen could legally record his client under New York law.

Maybe they waived it to avoid a showdown over whether the conversations were in furtherance of a crime or a tort? In any case, the President thought it was a bad idea from the beginning -- to pay with a check.

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