Professor Daniel Capra was consulted by the Washington Post for his expert opinion on which of President Trump’s communications with his personal lawyer, Rudolph W. Giuliani, fall under the protection of attorney-client privilege should Giuliani have to testify before congress.
Some legal experts have said that Congress does not recognize the attorney-client privilege because it is a common-law privilege, and Congress has authority, by statute, to override federal common law.
That reasoning is not correct, said Daniel Capra, a leading expert in evidence and legal ethics at Fordham University School of Law. It is a statute that establishes the federal law of privileges, by incorporating federal common law.
“As far as I have been able to find, there is no court case that has decided the issue. But there are indeed examples in which a congressional investigation takes the position that it need not respect attorney-client privilege,” Capra said, adding that any dispute has been settled or determined on other grounds.
Ethically speaking, an attorney is required to invoke privilege before a congressional investigation, unless the client has waived it.
“The lawyer has a duty to preserve confidences,” Capra said, calling it “a colorable claim” so long as “there is not some other consideration that makes the claim frivolous — like there was no legal work being done.”