“I Think Every Other Lawyer In Here Knows”

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“I Think Every Other Lawyer In Here Knows”

Published March 27, 2019 in The Daily Record

Republicans tried hard to discredit President Trump’s former personal lawyer Michael Cohen when he appeared before the House Oversight Committee in February. One fascinating line of attack, particularly mounted by Rep. Kelly Armstrong (R. ND), focused on supposed deficits in Cohen’s lawyerly ethics. No one, including Cohen, would hold Cohen up as a professional model, to be sure. Yet in most instances, both those raised in the Committee and those discussed among the commentariat, Cohen seems to have avoided unambiguously unethical behavior.

Self-Protection

Take the matter of Cohen’s tapes of attorney-client conversations made without the clients’ knowledge. No one disputes that the taping occurred in New York, which is a one-party consent state, so there is no question the taping was legal. But was it unethical? Armstrong, playing to the audience, commented “I think every other lawyer in here knows exactly where it is on the ethical standard.” Actually, not so much. The question was directly addressed by the American Bar Association Standing Committee on Ethics and Professional Responsibility in 2001, which noted that the ubiquity of recording devices has degraded any client’s expectation of privacy, and that there are many legitimate reasons for a lawyer to tape a client, including “self-protection of the lawyer,” almost certainly the very reason Cohen made the tapes of Trump. If the taping of clients is unethical, the Committee concluded, it must be because the taping was accompanied by other circumstances that made it unethical.

Fine, but what about revealing those tapes to the Committee or repeating what was said on the tapes in testimony? It’s true that the tapes were all seized by a Department of Justice investigative team, involuntarily breaching to that extent the confidentiality that may have attended them. But that would not have freed up Cohen to testify about the conversations on them. As to the tapes of Trump at least, however, that confidentiality was waived, both by Trump and by Rudolph Giuliani, his lawyer. Trump claimed an advice-of-counsel defense in tweets on December 13. And Giuliani had publicly claimed in July 2018 that the tapes would vindicate Trump’s denial of involvement in the Stormy Daniels payoff, and prove “powerful exculpatory evidence.” It would have been hard to claim privilege after those statements. And indeed privilege was formally waived by the Trump legal team in early court filings.

The one point about the tapes Armstrong made which may have been right was that Cohen’s proffer to the Committee of tapes he had made of other unspecified clients violated their privilege; we have no reason to assume any waiver on those. Still, as of the moment Armstrong sneered about this, Cohen apparently hadn’t actually turned over the tapes.

Book Deal

How about Cohen’s supposed book deal about being Trump’s lawyer? Today that probably would violate the Rule of Professional Conduct that provides: “An attorney shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent…” But Cohen’s book deal project appears to have been scrapped – and when it was conceived of, back when he and the President were close, it was intended to be a paean to Trump, not something to Trump’s disadvantage, and hence clearly not proscribed by the rule.

How about Cohen’s advancing the funds to pay off Stormy Daniels? That would apparently violate the rule about “not provid[ing] financial assistance to a client” – except that the advance is only forbidden if made “in connection with pending or contemplated litigation.” The payoff, as we all know now, was made shortly before the 2016 election. If any litigation was pending or contemplated between Daniels and Trump at that point, nothing in the public record yet reflects it.

The Daniels Payoff

Perhaps participating in the deal itself was participating in a criminal violation of federal election laws? Conceivably. Cohen was not ethically permitted to “commit a criminal act that reflects adversely on the attorney’s honesty, trustworthiness or fitness as an attorney in other respects.” Quite arguably, if the payoff was criminal, Cohen’s participation was both criminal and reflected on his honesty. But as we all know, whether the payoff was criminal is itself an unsettled question. In the first place, it would seem to depend on whether Trump had the requisite level of understanding of the criminality in the act, because one cannot criminally violate the election laws without knowing that the act that violates the laws is criminal. And since it was Trump’s money, not Cohen’s in the end, and absent proof that Trump had the requisite knowledge, it’s unclear that there could be a predicate offense to which Cohen would have been an aider and abetter.

Just to make the whole question even more complex, Cohen’s disbarment was announced the day he testified. Thus there is a strong argument to be made that he is no longer subject to the ethical rules any more. There is a 1989 Illinois State Bar Association Advisory Opinion that so holds. Hence, arguably he was and is now free to divulge client confidences and to write whatever he pleases about Trump, and profit from any book deal that monetizes what he writes.

What Every Lawyer Does Know

Because Cohen is disbarred, going to prison, and unlikely ever to practice law again, his ethics have only a theoretical bearing, except in the way the Republicans were trying to use them: as a way to cast doubt on Cohen’s testimony. Even there, though, the circumstantial and documentary evidence provide solid support for the truth of what Cohen told Congress. And on the other hand, even if he stayed within ethical boundaries, no one should want to be represented by a lawyer like Michael Cohen.

Every other lawyer in here does know that.

Copyright (c) Jack L. B. Gohn

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