12/7/2017
Donald Trump Jr. has refused to tell lawmakers on the House Intelligence Committee about conversations he had with his father this summer about the now-infamous June 2016 meeting in Trump Tower with a Russian lawyer with ties to the Kremlin.
Trump Jr. cited “attorney-client privilege” to avoid answering the lawmakers’ questions about the conversation, explaining that both his and President Trump’s lawyers were also on the phone call. But some lawmakers balked at that excuse. “I don’t believe you can shield communications between individuals merely by having an attorney present,” said Adam Schiff, the top Democrat on the committee. “That’s not the purpose of attorney-client privilege.”
According to Ric Simmons, Law Professor at Ohio State University, The attorney-client privilege unequivocally does not apply in this case. “The purpose of the privilege is to encourage free and open communication between a lawyer and a client so that the lawyer will get the full story and be able to give accurate legal advice.” “Simply having a lawyer in the room does not make the communications privileged.”
This conversation fails these requirements on two counts. “First, the conversation was not a confidential communication between an attorney and a client — there were two people in the room, and it is inconceivable that the lawyer was representing both of those individuals as joint clients.” “The presence of any non-client in the room will mean that the communication is not privileged.” “Second, there is no evidence that these statements were made with the purpose of receiving legal advice,” (and hence is not privileged).
Diane Marie Amann, Law Professor at the University of Georgia holds a similar opinion. “Ordinarily, the presence of an additional non-lawyer is understood to signal that the client does not care about confidentiality, and thus the privilege is not considered to apply. To avoid testifying about the conversation in that case, the person might try to invoke some other legal doctrine, such as the privilege against self-incrimination.”
Renato Mariotti, former Federal Prosecutor also agrees that attorney-client privilege would not apply. “The general rule is that a conversation is not privileged if a third person is present for the conversation with an attorney and a client. Some courts have found that the privilege was not waived when a family member was present where the family member had a role in taking care of the client.”
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