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April 17, 2018


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Patrick S. O'Donnell

So what about Sean Hannity? He stated, “Let me set the record straight: Michael Cohen never represented me in any legal matter, I never retained his services....” He says he consulted him on real estate questions. There's not attorney-client privilege here because he never was a client of Cohen's (thus Cohen was never his attorney), right? Did not Cohen's attorneys claim in court that Hannity _was_ one of his clients? And did not the explanation from Napolitano leave it an open question as to whether or not Trump was lying when he said he did not know (by answering 'No' to reporter's questions aboard Air Force One) about a $130,000 payment made to the adult film actress Stormy Daniels for her silence?


the clip is available here:

Deep State Special Legal Counsel

Leader Donald John Trump's lawyer, this dude, is what us real lawyers call a Hallway Hustler. He is the guy that we sneer at in traffic court hustling client bonds as fees. Or the guy who advertises too much on WGN during the day and local stations late trolling for the INJURED. These people make all of us look bad. They are a pox on a great profession.

Patrick S. O'Donnell

Over at Dorf on Law, Diane Klein clarifies, at least for me, the various facets of the attorney-client relationship. It seems the question of attorney-client privilege is not quite settled in the case of Hannity:

[....] "...[T]he idea that establishing the relationship requires payment, and/or that in the absence of payment there is no attorney-client relationship, is one of the most tenacious errors in the layperson's understanding of the legal profession (perpetrated by TV lawyers like Saul Goodman). It is not only that attorneys can do pro bono (unpaid charitable) legal work, although that is an obvious counterexample. The more fundamental point is that what triggers an attorney's obligations of confidentiality (and renders certain communications privileged) has nothing to do with the exchange of money. Buying silence is what Cohen did for his clients: his own silence did not need to be purchased - so long as he was actually acting as an attorney.

This is likely to become a crux of the matter. Not everything said to or by an attorney is covered by the attorney-client privilege. When a person who happens to be a lawyer gives business advice, for example, it is not protected. This situation - which Cornell Law Prof. W. Bradley Wendel calls 'the two-hats problem' - requires a determination of whether the client was consulting the lawyer as a lawyer (and not, for example, as a friend, business advisor, etc.) If, as the SDNY investigation of Cohen's email accounts indicates, Cohen performed 'little to no legal work' at the relevant times, attorney-client privilege will not be available to protect what was said by or to him." [....]

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