Tales of Trump: Attorney-client privilege versus confidential information

I was watching the hearing in Atlanta on efforts to disqualify the Fulton County D.A. Fani Willis from prosecuting former President Donald Trump because she engaged in a romantic affair with the person she appointed to be the special prosecutor in the case.

Early in the proceeding, there was confusion by the lawyers on the difference between the attorney-client privilege (ACP) and keeping a client’s confidences. So, I thought we could do a quick primer.

What is the ACP?

The ACP is a narrow privilege, applying only when a person comes to a lawyer for the express purpose of seeking legal advice. If so, then no third person can inquire into what the client (or prospective client) said to the lawyer and what the lawyer said to the client (or prospective client). Merely communicating with a lawyer—absent this purpose—is of zero legal significance.

If you communicate with a lawyer about firing an employee and the legal issues that might arise, then the discussion is covered by the ACP. If you communicate with a business colleague in your company about buying a new machine for your manufacturing plant and you “cc” your lawyer to keep her in the loop, the communication isn’t privileged.

Communicating with your lawyer about whether buying the machine is a good idea from a business perspective but no legal advice is sought, so the communication isn’t privileged.

You see where this is going.

Don’t open the door