Contrary to some recent Commander-in-Chief tweets, reports of the death of the attorney-client privilege have been greatly exaggerated. Trump appears to believe that the attorney-client privilege is broad. It’s not. In fact, it runs more to the narrow side.
The purpose of the attorney-client privilege is to encourage and promote full and frank consultation between a client and his or her legal advisor by removing the fear of compelled disclosure of such communications. Consolidation Coal Co. v. Bucyrus-Erie Co. 89 Ill. 2d 103, 117-18 (1982).
In addition to generations’ worth of case law interpreting the nature and scope of the privilege, many states, Illinois among them, have specific rules relating to the attorney-client privilege:
Privilege and Work Product. All matters that are privileged against disclosure on the trial, including privileged communications between a party or his agent and the attorney for the party, are privileged against disclosure through any discovery procedure. Material prepared by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation plans of the party’s attorney. The court may apportion the cost involved in originally securing the discoverable material, including when appropriate a reasonable attorney’s fee, in such manner as is just.
Illinois Supreme Court Rule 201(b)(2) (emphasis added).
The connections between Trump, Stormy Daniels, Michael Cohen and Essential Consultants LLC, the entity that Cohen created to do the deal with Stormy, bear a distinct resemblance to Abbott & Costello’s “Who’s On First” routine. But even if Cohen makes it past the crime-fraud exception to the attorney-client privilege (and apart from any ethical issues), he’ll have to deal with the terms “between a party” and “the attorney for the party.”
In order to be protected by the attorney-client privilege, the communication must be between a client and his or her lawyer in which legal advice is sought from the lawyer, the communication must relate to that purpose, and it must be made in confidence by the client, and even with those conditions met the privilege can be waived. Center Partners, Ltd. v. Growth Head GP, LLC, 981 N.E.2d 345, 355, 367 Ill. Dec. 20, 30, 2012 IL 113107, ¶ 30 (Ill. S. Ct. 2012). See also People v. Radojcic, 998 N.E.2d 1212, 1221, 376 Ill. Dec. 279, 288, 2013 IL 114197, ¶ 40 (Ill. S. Ct. 2013). Illinois law is clear that the duty to disclose is the rule, and the attorney-client privilege the exception. Consolidation Coal, 89 Ill.2d at 117-18.
So if a communication is made by counsel for one party to counsel for an adverse party, it’s not privileged. Or if a communication is between a client and his or her attorney and privileged, but one of them carbon copies the communication to someone outside that relationship, the privilege may be waived.
Like Sergeant Schultz, Trump claims to know nothing about any deal between Stormy Daniels and Cohen. If that’s so, then any communication between Cohen and Trump regarding Stormy’s hush money deal would not be privileged because no attorney-client relationship exists between Cohen and Trump as to that matter.
Cohen may argue that he had a “common interest” with Trump that preserved the attorney-client privilege. This would reflect a misunderstanding of the common interest doctrine.
Although sometimes incorrectly referred to as a privilege in itself, the common interest doctrine is not a privilege at all. Rather, it is an exception to the rule that a communication that was protected by the attorney-client privilege loses that privileged status if it is disclosed to a third person. Robinson v. Texas Auto. Dealers Ass’n, 214 F.R.D. 432, 443 (E.D.Tex.2003). The common interest doctrine extends the attorney-client privilege to communications that would otherwise have become non-confidential because they passed outside the attorney-client relationship, but only when the parties undertake a joint effort with respect to a common legal interest. U.S. v. Evans, 113 F.3d 1457, 1467 (7th Cir. 1997). Illinois cases reflect a strong policy in favor of discovery to ascertain the truth in legal disputes, Monier v. Chamberlain, 35 Ill. 2d 351, 359 (1966), so in Illinois the term “common” as used in “common interest doctrine” carries much more freight than it does outside the law: “[t]he key consideration of the [common interest doctrine] is that the nature of the interest be identical, not similar, and be legal, not merely commercial.” Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp 1146, 1174 (D.S.C. 1974). A shared desire to succeed in an action does not create a “common interest.” In re Grand Jury Supboena Duces Tecum, 112 F. 3d 910, 922 (8th Cir.), cert. denied, 521 U.S. 1105 (1997).
Trump’s blanket denial of any knowledge about the Stormy Daniels hush-up deal weakens, if it doesn’t absolutely destroy, any claim by Cohen of a common legal interest.
Energy Law, Policy and Development 