There has been more talk than usual of late about the attorney-client privilege, particularly after the FBI executed a search warrant on the offices of President Trump’s personal lawyer, Michael D. Cohen. Putting that extraordinary situation aside, there have been a few slightly more run-of-the-mill developments over the last year that have reminded us that privilege can be a fragile thing, and one we must work hard to protect.
In the United States, we are accustomed to working within the safeguards of legal privilege and attorney work product protections. We value the ability to think through issues relating to anticipated litigation on the blank page, safe in the comfort that our thoughts and impressions will be protected from adversarial eyes. When conducting investigations, we create binders of key documents and draft interview memos that give us the ability to pore over our understanding of, and reaction to, what each witness said. This is essential to our job. But as recent case law shows, we must always be alive to the risk that, under certain circumstances, the privileged status of these memos may not hold up. We must be careful to structure our investigations to maximize all available protections.
