The US crime-fraud exception to the attorney-client privilege

The recent seizure by United States federal agents of documents in the possession of President Trump’s personal lawyer, Michael Cohen, has generated much press and speculation concerning the scope of protection over those documents afforded by the attorney-client privilege. While many of those documents are reportedly unrelated to Cohen’s representation of President Trump, there has been speculation that some of the investigators’ focus is on possible campaign contribution violations. Reports of a US$130,000 payment allegedly made by Cohen to an adult film actress to obtain her silence could perhaps provide grounds for the assertion of such violations, depending on the source of those funds. In that event, according to continued press speculation, otherwise privileged communications between Trump and Cohen may lose their privileged status, should the court decide that the crime-fraud exception applies to documents dealing with that payment and the source thereof.

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