Trump-Related Circuit Court Decision Includes Troubling Waiver Analysis

December 28, 2017

Because historical facts do not deserve privilege protection, disclosing those facts does not trigger a privilege waiver.  Thus, disclosing historical facts to the government should not waive the disclosing client’s privilege protection for communications with her lawyer about those facts.

But some decisions take a different, troubling, approach.  In In re Grand Jury Investigation, Misc. A. No. 17-2336 (BAH), 2017 U.S. Dist. LEXIS 186420 (D.D.C. Oct. 2, 2017), the court ordered former Trump campaign manager Paul Manafort’s lawyer to testify before a grand jury.  In addition to applying the crime-fraud exception, the court held that the lawyer waived her clients’ privilege protection by making representations about historical facts in submissions to the DOJ.  The court noted that the lawyer’s submissions “made specific factual representations to DOJ that are unlikely to have originated from sources other than [Manafort and a colleague], and, in large part, were explicitly attributed to one or both [of their] recollections.”  Id. at *32.  The court relied on this unsurprising circumstance in holding that the representations “impliedly waived the privilege as to [the clients’] communications with [their lawyer] to the extent that these communications related to the . . . Submissions’ contents.”  Id.

A lawyer’s disclosure of historical facts should not strip away privilege protection from the lawyer’s communications with her client about those facts.