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.