Wednesday, April 18, 2018


The Cohen-Hannity Connection

As if things weren't weird enough...

On Monday, Judge Kimba Wood (SDNY) insisted that lawyers for Trump lawyer Michael Cohen release the identity of Cohen's mysterious third client (the other two being Trump and RNC official Elliot Brody, who used Cohen to negotiate a $1.6 million payment to a Playboy Bunny he had impregnated).  And it was... drum roll... Sean Hannity, the head Trump cheerleader over at Fox News. 

Once that came out, Hannity said some weird things, including:

-- "Michael Cohen has never represented me in any matter."
-- "I never retained him, received an invoice, or paid legal fees."
-- "I assumed those conversations were confidential."

Like Trump, Hannity seems to have no idea how attorney-client privilege and lawyer confidentiality works. They seem to assume that privilege and a duty of confidentiality magically attaches to conversations with some guy (and they seem to work only with guys) who is a lawyer. 

But... no.  Attorney-client privilege actually only attaches when, well, a person is a client of the attorney (or, sometimes, involved in a discussion preliminary to becoming a client). It's really all there in the name of the privilege. Hannity and Trump seem to think it is Attorney/Guy-he-is-talking-to-at-the-moment privilege, but that's not right.

Hannity prattling on about how he is NOT a client of Cohen (the first two statements above) should have tipped him off that the privilege and a duty of confidentiality might not apply. 

Attorney-client privilege and a lawyer's ethical duty of confidentiality are related concepts. Even aside from statutory restrictions,  lawyers have an ethical duty to keep certain confidences about information they received from a client-- but those, too, are defined as existing within the context of an actual attorney-client relationship. It doesn't come just from one of the people being a lawyer. 

If you are curious, I have pasted in below the relevant New York Rule of Professional Responsibility:

RULE 1.6.
Confidentiality of Information
(a) A lawyer shall not knowingly reveal confidential information, as defined in this Rule, or use such information to the disadvantage of a client or for the advantage of the lawyer or a third person, unless:
  1. (1)  the client gives informed consent, as defined in Rule 1.0(j);
  2. (2)  the disclosure is impliedly authorized to advance the best interests of the client and is either reasonable under the circumstances or customary in the professional community; or
  3. (3)  the disclosure is permitted by paragraph (b).
“Confidential information” consists of information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential. “Confidential information” does not ordinarily include (i) a lawyer’s legal knowledge or legal research or (ii) information that is generally known in the local community or in the trade, field or profession to which the information relates. 

More curious is why did Cohen believe that Hannity is his client? I have lots of attorney friends that I talk with but I don't think they would list me as a client unless I signed a retainer.

I have heard Cohen more aptly described as a businessman who happens to have a law license.
This is good news--I thought I had completely mislearned Civ Pro last semester. Good to see I have a better understanding of A/C privilege than America's "most trusted" news commentator.

My other thought was this: how can you have a functioning law practice with only three clients?
Nate, that is a mystery... unless one of them pays you really well. And the guy does seem to enjoy some nice suits and the occasional cigar...
I just heard him more aptly described as a Biz Dev lawyer. I am guessing Trump was his employer as opposed to a client in the traditional sense. The other guy, not Hannity was a referral from his boss (DJT). Probably told him that Michael knew how to take care of this type of matter as he had done it for him.
Additional thoughts from another former federal prosecutor:
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