Monday, March 04, 2019

Is Michael Cohen An Unethical Lawyer For Taping His Clients Without Their Consent?

by Diane Klein

Among the antics to which we were treated last Wednesday during Michael Cohen's testimony before the House Oversight Committee was the spectacle of Rep. Kelly Armstrong (ND-R) asking Michael Cohen if he would turn over to the Committee the approximately 100 tapes Cohen claims to have made of conversations with clients - followed by Texas Republican Charles "Chip" Roy expressing sputtering malaphoric outrage that Cohen would do so "with [sic] the bat of an eye."

A number of Republican lawyers on the committee either suggested or stated outright that Cohen (had he not been disbarred just a few days earlier 26, 2019) would or should be subject to discipline either for taping his clients without their permission, or for turning over the resulting recordings to law enforcement or the House Oversight Committee.  Are they right? In a word - no.

Michael Cohen is not a great lawyer.  But even if he's a bad lawyer, he is not even Trump's worst lawyer (an "honor" that almost certainly goes to Rudy Giuliani).  And he definitely wasn't the worst lawyer in the House chamber during this hearing.

Though it was sometimes a struggle for Cohen to get a word in edgewise, he offered three non-Trump-specific defenses of this conduct - and one relevant to his very special client: (1) New York is a "one-party consent" state, hence making such tapes is itself not illegal; (2) the materials in question were already in the hands of law enforcement; and (3) he used the tapes as an alternative to taking notes.  His Trump-specific defense had two parts: Trump himself does not use email or text, so there is no record of communications with him; and, based on prior disputes between David Pecker of AMI and Trump about payment agreements, Cohen wanted to created a record of what Trump had agreed to do. How do these stack up?

Let's begin with his first point: the one-party consent issue.  Republican Committee members queried Cohen on how the New York bar would view unconsented-to one-party taping, and Cohen correctly replied that it is legal under New York law.  His questioners seemed to think he also ought to know (or have known) whether it comported with New York legal ethics, as if this were an easy question.  In fact, it is a vexed one, upon which the relevant authorities have reversed themselves several times, including in recent years.  A recent article in the New York Legal Ethics Reporter traced the tortuous path of the ethics opinions, and concluded that it "remains murky" whether this is permitted.  The two recent cases addressed in the article criticized the practice, but nevertheless did not result in bar discipline for the lawyers involved.  In addition, neither of those cases involved taping one's own client, which raises different concerns than taping a witness or adversary.

Second, the Republicans also seemed not to know (or care) that the materials in question had already been in the hands of law enforcement, following the raid back in April 2018 - and then returned.  Here is Rep. Higgins of Louisiana, in search of the "boxes."  Or perhaps they imagined that no proper privilege assertion would have made at that time.  Reps. Armstrong and Roy weren't elected to the House until November 2018, so perhaps they can be forgiven (despite holding statewide Republican office) for having missed the two month period the Southern District spent reviewing millions of documents for privilege issues, from the April 2018 raid until June 2018.  Just 12,000 ended up even arguably privileged.  And perhaps they can also be forgiven for imagining that 100 tapes meant 100 hapless and trusting clients, horrified to discover they been surreptitiously taped by their lawyer, Michael Cohen.  But during the relevant time, Cohen appears to have had only two clients other than Trump: Elliott Broidy, an RNC fundraiser with an affair to cover up; and Sean Hannity (on whose podcast Rep. Roy appeared back in January).  Are these the clients we think would allege that their lawyer breached their trust by taping them?  Or turning over confidential material?  If so, are we concerned that these very wealthy individuals (Hannity's net worth is estimated at $200 million, Broidy's at just $75 million) would not know enough to make a suitable privilege assertion?

In addition, to the extent that the materials were ordered to be turned over (or seized in compliance with a warrant), an exception to confidentiality applies.  Model Rule 1.6(b)(6) permits the revelation of confidential client information "to comply with other law or a court order."  North Dakota (where Rep. Armstrong was admitted on October 6, 2003) has adopted Model Rule 1.6 in its entirety. Texas Disciplinary Rule of Professional Conduct 1.05(c)(4) (the state where Rep. Roy was admitted in April 2004)) permits it  "[w]hen the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law." So if either of them had been paying attention to the Mueller investigation at all during 2018, they would have understood the status of these materials.

Cohen's third reason - that taping is a superior alternative to written note-taking - seems entirely plausible, and I would guess many lawyers today record client meetings for this very reason.  (Even as famously scrupulous a note-taker as James Comey, exclaimed, in the midst of his he said-he said dispute with Trump, "Lordy, I hope there are tapes!")

Suppose an attorney had an echoic memory (the auditory version of eidetic memory), and could, after a client meeting, write down, verbatim, what was said, to a very high degree of accuracy.  (Or suppose he were trained like James Comey or Andrew McCabe.)  It would be strange to suggest such an attorney would need to ask his client's permission to record his recollections after the meeting - the primary purpose of these notes is for the lawyer, and specifically, to enable the lawyer to serve his or her client.  Surely, it would not violate any duty of "confidentiality" to create such notes - so long as the attorney did not share them improperly.  But the sharing violation would apply even if the attorney just recounted what he had been told in confidence - the tangible record is irrelevant.

Obviously, obtaining clients' prior and ongoing consent to such recording is advisable, but it is not clear that it is obligatory.  While some ethics opinions treat secret taping, even if legal, as potentially a violation of MR 8.4(c), a catch-all rule against "conduct involving dishonesty, fraud, deceit or misrepresentation," there appears to be no sense in which simply making a tape without permission would violate the duty of confidentiality, as the GOP Reps accused Cohen.  (Like many non-lawyers, but inexcusably for actual lawyers like Armstrong and Roy, they were careless in distinguishing between attorney-client privilege - an evidentiary rule - and the duty of confidentiality, which can be a basis of professional discipline when breached.)  The duty of competence might even require it, so long as reasonable care was taken to maintain the security of the resulting records, as required by MR 1.6(c) ("A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client").

And that brings up another reason why an attorney might make tapes, one Cohen didn't mention: in the event of a future dispute with the client, a malpractice case, or other similar situation.  Here too, there is an exception to confidentiality.  Model Rule 1.6(b)(5) states,
A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client.
Under Texas Disciplinary Rule of Professional Conduct 1.05(c),
A lawyer may reveal confidential information:....(4) When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law. (5) To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client. (6) To establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer or the lawyer's associates based upon conduct involving the client or the representation of the client.
Given some of what has been said by Trump about Cohen, and by Hannity about him (denying the relationship), Cohen may also have been protecting himself by making such tapes.  Michael Cohen, not exactly the pride of Thomas M. Cooley Law School, made a lot of mistakes - as a lawyer, and as a human being.  But being slipshod about the ethical requirements of confidentiality is not one of them.

10 comments:

Shag from Brookline said...

You didn't mention Rep Jim Jorhan's "wrestling" with his anger at Cohen although Jordan did not "wrestle" with his own problems while a school wrestling coach..

I welcome the details in this post. Can we expect some of these Reps. to be added to the Coloring Book? If so, I'll have to stock up on red crayons.

The GOP members on the Committee acted in accord with the trial attorney tactic: If you've got the facts on your side, pound on the facts. If you've got the law on your side, pound on the law. If you don't have the facts and the law, then pound on the table.

I enjoyed the parenthetical reference to Rudy Giuliani, as it reminded me of a conspiracy theory. It has been reported that Giuliani is working for free for Trump. Pro bono for an alleged billionaire. But Rudy has an extensive international practice involving security, selling his services to foreign nations as America's 9/11 expert. Might some nations engage Rudy because of his closeness to President Trump, hoping to curry favor with President Trump by paying big fees to Rudy? Might such be considered a potential violation of the Constitution's foreign emoluments clause? Let's hear from conspiracy theorists.

By the way, Cohen is not a hero and far from a John Dean. But the facts and law that might result from Cohen's testimony can serve to pound out protection for our democracy. This post is a welcome start. Thanks.

Joe said...

Cohen is far from a John Dean but reading the book "Prosecuting the President: How Special Prosecutors Hold Presidents Accountable and Protect the Rule of Law," there was a reminder he was not just an innocent party there either.

I appreciate the nuances of this post though the last sentence seems to curiously just hang there. Also, if anyone missed it, Michael Dorf added a good link in a comment to his post regarding Stephen Reinhardt, which includes a memorial from Sotomayor.

Diane Klein said...

Sorry (please check updated version).

David Ricardo said...

I realize that this is an important post on an important topic, and a very good and interesting one, but when it first appeared on my screen with the headline

"Is Michael Cohen an Unethical Lawyer . . . "

I had to stop right there and laugh out loud. No disrespect intended to the author or the post, as I assume writing can be serious, contain academic integrity and be somewhat playful all at the same time. (see Marty Ginsburg or Richard Posner if you disagree).

Diane Klein said...

David - I don't take it as disrespect, at all. But I am reminded of how Bill Maher almost paid with his career (and DID pay, with one show) for DARING to suggest that whatever one might say about the 9/11 bombers, saying they were "cowards" was not accurate. Michael Cohen did SOME things wrong - for sure. But that does not mean he did EVERYTHING wrong. Lawyers should be precise, and should know which rules he broke, and which he didn't. And that goes double for lawyers in Congress. Viewers watching might have thought those Republicans were obviously right, that OF COURSE he's a bad lawyer for this. But they would be wrong. People should be criticized for what they do wrong, and not for what they don't. Isn't that a basic principle both of professional discipline and criminal law?

Shag from Brookline said...

Speaking of Rudy Giuliani, consider the views in this NYTimes March 4, 2019 Op-Ed: " How Giuliani Might Take Down Trump - The parallels between the Mafia and the Trump Organization are striking, and Giuliani perfected the template for prosecuting organized crime. By Garrett M. Graff, reflecting on Michael Cohen's testimony before the House Oversight Committee. (This Op-Ed is a "Favorite" at the NYTimes online."

  said...

My immediate reaction to the headline of this piece was "Let me count the ways..." My second reaction was "If we're reaching that far, then law is not a profession but is instead merely a lightly regulated marketplace for paid mercenaries who are authorized to break any rule so long as it's for their clients' benefit."

Oh, wait a minute...

David Ricardo said...


There is no disagreement with Ms. Klein's response. However in the legal world, as with other worlds, there are degree's of unacceptable/unethical behavior.

With respect to Michael Cohen the most serious, egregious offense is that he lied under oath. And lying under oath would seem to be one of the most serious if not the most serious ethical violation/crime an attorney could do. Telling the truth when under oath is one of the basic tenets of our justice system, it is something that all of us expect, it is something that is necessary for a justice system to work, it is a foundation of jurisprudence. Without it there is no justice system.

So it is hard to say that with respect to Michael Cohen that he should not be condemned for the things he did correctly. First of all no one should gets props for doing the right thing. And secondly in understanding his life there does not appear to be any charitable actions. He did not do pro bono work, he did not seek to do anything but further the interests of himself and his client, sometimes by threats.

That being said, the Republican response was to say that since he lied in testimony before, everything he says is a lie. That is stupid, that is nonsense, and it only served to illustrate blind loyalty to Trump as opposed to trying to get to the truth. But then, maybe Jordan and Meadows and the others couldn't handle the truth.

Diane Klein said...

But again - my point was (I thought) somewhat subtler - and one may think it is one not worth making! I teach Professional Responsibility, so I teach law students about the various duties they have AS LAWYERS, and I frequently blog about PR matters, as such. Lying under oath is a duty ALL of us have, as witnesses (though one can refuse to answer for a variety of reasons, one cannot affirmatively LIE for any reason). But THAT is not what these two Reps were going on about. They questioned him about THIS issue and attempted to make something of it. That attempt was baseless and misguided. Absolutely NOTHING follows from that about Cohen's overall character, professionalism, etc. I don't like seeing Congressmen who are admitted to the bar propagating falsehoods about lawyers' ethics. Call me persnickety.

David Ricardo said...

Ok good, I now understand better where you are coming from. Us non-lawyers don't always handle subtle well, which is on us, not you or the other really good writers who post on this Fourm.