I was watching an exchange between Chris Cuomo and Rep. Matt Gaetz about the relationship between President Trump and his personal attorney Mayor Giuliani.

In it Chris said:

The great theory here is, that it's one thing to ask a congressman to go and do something, we don't know if this man is the president's lawyer, if he was a proxy for the State Department or he was just acting as a concerned citizen.

But it really matters which answer is correct because if he wasn't acting as the president's personal lawyer, and we don't really know that that's true because I don't know how he was getting paid. And if it was pro bono, did he file it as such? Because we can't find any record of it. Did the president report it as such, because we don't find any record of that.

Then, Rep. Gaetz replies:

There's no obligate Chris, that's a red herring. It doesn't matter whether he is getting paid or not. What matters is whether Giuliani was acting in the interests of

And then Chis cut him off to say:

It does if you want privilege

This followed by some more back and forth, but I think the premise of the question is clear.

My question actually is to what extent a pro bono attorney client relationship has to be declared before privilege can apply.

On the one hand it seems reasonable to me that there has to be some declaration, otherwise every conversation with someone who is also a lawyer can later be claimed to be privileged (if it suits those involved). On the other hand, there may be conversations early on in the attorney client relationship before it is formally declared that should(?) also be privileged.

So, are there any rules governing when privilege applies in those pro bono cases? For this question, I'm specifically asking about the US.

2 Answers 2


There is no public place to “file” that. When privilege is claimed and the other side challenges it then the person claiming privilege needs to establish somehow that the attorney client relationship exists and is pertinent to the question. In the normal course of things there would be an engagement agreement in the attorneys files.

And not everything communicated between a client and attorney is protected by the privilege. It only covers legal advice and specifically does not cover discussions planning criminal activity.


Furthermore, the client is able to selectively waive attorney-client privileges documents, such as the documents signed stating that they are working for their client. The attorney discussing which documents and communications that could support evidence to this without revealing details that need to be protected... is itself protected... Having been in a situation where an attorney had a client that was paid for by a third party, the difficult part of that situation was separating the parts of the contract related to payment from the parts related to privileges.

The concept of the "dollar bill lawyer", best seen in Breaking Bad, when Saul Goodman asks Walt to give him a Dollar so that they could all claim under oath that Saul was paid and thus all their communications were privileged. And since all the criminal stuff against Goodman happened prior to payment, they never discussed plans for future crimes... but rather crimes that were committed in the past. Attorney client priviledge exists for this reason, though Saul is really pushing the envelope. It allows the accused to tell his legal council exactly what they did without incriminating themselves so the lawyer knows how to build the case. Suppose a lawyer has to defend someone who is accused of shooting the sherif and deputy. The honesty of the client in telling his side of the story is vital to the lawyer's job, even if the client didn't do it, or did do it, or shot the deputy but not the sheriff (That was Bobby, man!).

The payment is good evidence, but the contract for representation is reliable evidence.

  • Please try to add some refernces to support your answer.
    – JJJ
    Commented Dec 9, 2019 at 21:52
  • @JJJ - Considering the matter is personal experience of an unusual situation, I would prefer not to divulge details.
    – hszmv
    Commented Dec 10, 2019 at 12:02

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