Government

Judge Offers Trump Lawyers Free Lesson On How Privilege Works

The tricky thing about attorney-client privilege is... well, nothing really.

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Attorney-client privilege is difficult to master. An attorney, giving legal advice to a client, and only to the client and not disclosing it to an adversary or a third-party? What a slippery concept!

At least that’s what Trump’s legal team thinks. In reality, it’s an entirely straightforward concept and that’s what Justice Arthur Engoron thought when he issued a terse, one-paragraph order demanding Morgan Lewis drop its theatrics and hand over a bevy of materials that it tried to withhold from the New York Attorney General’s office on privilege grounds.

Morgan Lewis, in the midst of severing its ties to the toxic former president, marked multiple communications as privileged — suggesting that the communications were “quarterbacked” by partner Sheri Dillon even if they don’t appear to involve any legal advice at all, and had already been selectively produced to a third party. Those are typically no-nos when it comes to asserting privilege but fortune favors the bold, I guess! After looking through the material, Engoron determined that fortune did not.

The Court finds that many of the communications Morgan Lewis marked as privileged were communications addressing business tasks and decisions, not exchanges soliciting or rendering legal advice. “[A] lawyer’s communication is not cloaked with privilege when the lawyer is hired for business or personal advice, or to do the work of a nonlawyer.” Spectrum Systems Intern. Corp. v Chemical Bank, 78 NY2d 371, 379 (1991). Similarly, any communications within Morgan Lewis speaking to public relations are of a business, not legal, nature. Moreover, as previously noted, a client waives the privilege if communications are made in the presence of, or are subsequently revealed to, a third party. Ambac Assur. Corp. v Countrywide Home Loans, 27 NY3d 616, 624 (2016).

It’s almost as though Trump brought lawyers into non-legal conversations for the express purpose of invoking attorney-client privilege to keep investigators out of potentially problematic conversations. Like discussions over the valuation of his properties, especially assessments performed for the decidedly non-legal purpose of applying for loans or insurance coverage. But obviously they would never do something like that because that would be as wrong as it is transparently simple to overcome.

Shady valuations are at the heart of years’ worth of allegations about the Trump Organization. Everyone’s favorite Thomas M. Cooley Law School graduate, Michael Cohen, testified that Trump would inflate valuations for banks and then turn around and deflate those valuations for tax authorities, in what amounts to keeping two sets of books and either defrauding banks, cheating the government, or both.

This opinion is refreshingly to the point. A federal judge would find a way to churn out 15 pages with five or six citations for every point. Justice Engoron went the other way and sent a message through his brevity that he’s done having to field remedial Evidence issue-spotters from Morgan Lewis and the Trump Organization.

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This is why Trump hates lawyers who take notes. Can’t produce damaging documents when there aren’t any documents!

NY judge orders Trump Organization’s tax firm to hand over more documents to state attorney general [WENY]

Earlier: Donald Trump’s Tax Lawyers Saying, ‘Trump Who?’ As IRS Changes Hands

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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