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July 26, 2018


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Steve L.

Good post, Bernie. What about Rule 8.4(c), engaging in "conduct involving dishonesty, fraud, deceit, or misrepresentation"? Couldn't surreptitious taping of a client -- that is, with a hidden recording device -- be considered deceitful?

Bernie Burk

Excellent question, Steve. I think the answer is that secret taping could be considered "deceit[ful]" for these purposes only if there is a duty to disclose it. As to non-clients, I don't think such a duty exists; under these circumstances the taping is either illegal under laws devoted to such practices or it is not. As to clients such as Trump, I argue in the post that Rule 1.4 probably does contain a duty to disclose, though that's not without at least some doubt. So a Rule 8.4(c) violation and a Rule 1.4 violation would seem to stand or fall together. Does that make sense?


J. Bogart

I think your case that Cohen violated 1.4 needs elaboration. Why is the manner of recording information a development in the case or matter?

Bernie Burk

Maybe the better question is why would it NOT be a "material development" to have your client on tape doing something that sounds like scheming to violate campaign finance laws by paying off and shutting up a mistress? All kinds of things can happen in the course of a matter that it's easy to imagine the client would want to know about, and that's my functional definition of a "material development."

And in all events the lawyer must consult with the client on the means of achieving the client's goals. Taking notes is one of the means I employ to achieve the client's goals. I don't tell the client if I use blue ink or black ink, or a laptop or a tablet, to take notes, because that's not something the client likely cares about. But if I use my iPhone or dictaphone to "take notes" by recording my phone conversations with the client, he might care about that and wish to be consulted.

None of this is very clearly addressed by the existing interpretations of the Rule in question, or at least by the ones that I know about. But when a situation presents itself, or more accurately you create a situation by your actions, you have to decide what the Rules require or suggest you do.

The strongest argument of a violation is that disclosure of the tape violates the duty of confidentiality.


Steve L.

"I think the answer is that secret taping could be considered "deceit[ful]" for these purposes only if there is a duty to disclose it."

It's not obvious to me that there must be a predicate duty to disclose in order to be non-deceitful. The client's default assumption would be that conversations are not taped, and that any taping device would be visible. Use of a hidden device defeats the client's assumption and is therefore deceitful.

To put it another way, there is a duty to be non-deceitful, which results in the obligation to disclose -- not (only) because it is a "material development, but because it is deceitful to do otherwise.

Ellen Wertheimer

A couple of questions to follow up on this interesting post:

First, isn't the rabbit put into the hat by your underlying assumption that Michael Cohen was Trump's attorney with respect to the matters at issue? I have some recollection (verified by a quick search) that Trump basically said in public that Cohen was not, and that Cohen only did a "tiny, tiny fraction" of Trump's legal work. On a related note, it seems a bit problematic for Trump to claim that something never happened and that Cohen represented him with respect to events that never took place.

Second, what are the obligations of an attorney whose client is attempting to do something illegal, assuming an attorney/client relationship? I don't know much about the illegality (or not) of what Cohen and Trump were doing, but aren't there disclosure obligations for attorneys in contexts like these? How do these obligations relate to privilege claims?

Bernie Burk


I see your point, but would suggest a different approach. Look at it this way: In New York, the law requires only one-party consent to tape telephone conversations. It seems fair to say that it wouldn't work to leapfrog the limits of that constraint and say that undisclosed taping is misrepresentation by omission, because (in New York at least) there is no duty to cure the omission.

So then the question becomes whether that changes when the secret taper is a lawyer. When the person being taped without consent is a client, I've suggested that the answer is yes, it is different, but that's because lawyers owe fiduciary duties of candor to their clients that they don't owe to others.

But where the person being taped is not a client, and is owed lesser duties, where does the obligation to disclose come from? You suggest it is created by Rule 8.4(c) and enforced by discipline (which would appear to be the only remedy, because under the analysis in the first paragraph above this conduct would not be tortious). I would suggest that finding such a broad and comprehensive disclosure obligation in Rule 8.4(c)'s prohibition of "deceit"--a disclosure obligation that is not found anywhere else in New York law--makes the Rule do far more work than it's fairly capable of taking on.

By the way, your analysis also suggests that in New York an ordinary lay person might properly investigate a wrong by using secret (one-party consented) taping, but if a lawyer--or an investigator retained by a lawyer because of Rule 8.4(a), which prohibits a lawyer from using someone else to do something the lawyer may not do herself--did so it would be forbidden on pain of losing your license. That doesn't really make much sense. I can imagine a scheme in which no one (other than law enforcement) can tape phone calls in secret--that's the law in California and a few other states. But I doubt a scheme in which anyone can tape in secret except lawyers and their agents.


Bernie Burk


These are thoughtful, practical questions, and thank you for bringing them forward. It seems to me that one is more factual, and the other more legal. Let me dive in:

With respect to the existence of an attorney-client relationship: I’m not sure there’s all that much assumption involved in the conclusion that Cohen was Trump’s lawyer with respect to Karen McDougal. It is true that Trump said shortly after the FBI raided Cohen’s home and office that Cohen only did a “tiny, tiny fraction” of his legal work. He also said, in highly publicized video taken on Air Force One, that he knew nothing about the six-figure payment to Stormy Daniels and the reporter would have to ask his Cohen because “he’s my lawyer.” And a statement that Cohen did only a little of Trump’s legal work isn’t even a denial that Cohen was his lawyer with respect to McDougal.

More importantly, Trump’s post hoc public denial that Cohen was his lawyer with respect to McDougal wouldn’t be dispositive even if it had happened (which it didn’t). I don’t think it would be overtly partisan to observe that Trump regularly denies all kinds of things that turn out to be true, for example the statement by his then-Communications Director Hope Hicks that he knew nothing about the National Enquirer’s payments to Karen McDougal two months after the phone call with Cohen on the tape in which he discusses those very payments. And it is pretty much impossible to understand the conversation on the recently released tape as anything other than a conversation between lawyer and client. What’s more, Trump’s own lawyers claimed (and then waived) the attorney-client privilege as to that tape, indicating Trump’s own position that Cohen was Trump’s lawyer with respect to that subject matter.

I’ll address your other question in a separate Comment.


Bernie Burk


Turning to your second set of questions, the obligations of a lawyer with respect to a client’s proposed or actual illegal conduct are easy to describe but sometimes hard to follow. It’s absolutely clear that a lawyer may never “counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent . . . .” ABA Model Rule 1.2(d). That rule goes on to explain that “a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.” So if the client proposes a course of action that amounts to (say) a campaign finance violation, the lawyer certainly can’t provide advice about how to avoid getting caught, but certainly can explain that the proposed conduct is illegal and what could happen if the client does it. The lawyer also could discuss alternative ways of achieving the client’s objective that in fact comply with the law. Heck, we lawyers do that all the time, right? Of course, on the tape Cohen appears to have violated Rule 1.2(d), and discussed with his client how he was going to help Trump violate campaign finance law. (Trump’s attorney Rudy Giuliani disagrees with this interpretation, which is his job.)

“Are there disclosure obligations for attorneys in contexts like these?” Generally no; and in fact the opposite: There are CONFIDENTIALITY obligations covering most (but not all) circumstances like these. If your client calls you up and tells you he committed a crime, you MUST keep his confidence, and not turn him in.

Of course, there are exceptions to the duty of confidentiality, but they are narrowly defined. For example, in most jurisdictions a lawyer may breach confidentiality in order to prospectively prevent the commission of a crime or fraud (or in some jurisdictions rectify one committed with the use of the lawyer’s services), but the disclosure is almost always discretionary with the lawyer, not required, and presupposes (a) an attempt to dissuade the client from the illegal behavior; (b) a reasonable degree of certainty that the client is really going to do it; and (c) in many jurisdictions the anticipation of a really serious crime or fraud. (This is an area in which there is a lot of state-to-state variation.)

How these obligations relate to privilege claims is that the privilege is an evidentiary privilege against compelled disclosure, while the duty of confidentiality is a duty to refrain from voluntary disclosure. In Venn diagram terms, anything that is privileged is confidential (confidentiality of the communication is an element of the privilege), but many things that are not privileged are nevertheless subject to the duty of confidentiality. That’s why Cohen violated his duty of confidentiality by giving the tape to CNN even though Trump had waived the privilege that applied to it.

Hope that helps.




As usual, a quick internet search won't reveal much "truth," or even accurate reporting of the reporting.

You say: "it seems a bit problematic for Trump to claim that something never happened and that Cohen represented him with respect to events that never took place."

Note how often the news media refers to "it" or "something" or "events" blurring the reference to obscure the facts.

On the tape, according to a transcript published by the Washington Post, the conversation was, in part:

"COHEN: Correct. So, I’m all over that. And, I spoke to Allen about it, when it comes time for the financing, which will be —

TRUMP: Wait a sec, what financing?

COHEN: Well, I’ll have to pay him something.

TRUMP: [UNINTELLIGIBLE] pay with cash ...

COHEN: No, no, no, no, no. I got it.

TRUMP: ... check.

As I heard it, there was a ? after "cash" not an ellipses.

According to a story that ran in the Wall Street Journal on November 4, 2016, "a contract reviewed by the Journal gave American Media exclusive rights to Ms. McDougal’s story forever, but didn’t obligate the company to publish it and allowed the company to transfer those rights. It barred her from telling her story elsewhere." That contract, the Journal reported, called for a payment of $150,000.

At the time, the Journal further reported: "Hope Hicks, a Trump campaign spokeswoman, said of the agreement with Ms. McDougal: “We have no knowledge of any of this.”"

This is now being spun as proof that "Trump paid a Playboy model $150,000" and that he "lied" about it.

What are the "events" you say never took place?

Steve L.

I don't see the point of routing this through Rule 1.4, Bernie, which seems unnecessarily complex and uncertain. Yes, one-party taping is not a crime in New York, but I think clients are entitled to expect more out of their attorney-client relationships than non-criminality. I think it is possible for a lawyer to be deceitful without simultaneously being a criminal.

Likewise, I think it is possible to be deceitful toward a client without breaking some other disciplinary rule. Otherwise, there would be no need for Rule 8.4 with regard to clients.

Thus, I think it is deceitful to surreptitiously defeat a client's reasonable expectation of non-recording (which I think is the baseline for all communications within a relationship of trust), without regard to the criminal law or other rules. To put it another way, why do it secretly unless the intention is to deceive?

Bernie Burk


I think we reach the same destination by somewhat different routes with respect to the ethics of a lawyer secretly taping a phone call with a client. How does your analysis work when the lawyer secretly tapes a phone call with a nonclient, e.g. opposing counsel or a third-party witness? Assume we're in New York, which allows one-party consent.



Even the phone company warns "This conversation may be recorded for training and quality control ..." Of course, we all have a reasonable expectation of privacy that precludes taping without our consent, though the (criminal) law in NY is to the contrary (not determinative of civil or disciplinary liability, surely)!

Perhaps the analysis should turn not on recording, but RELEASING the recording. That is, as they say, a horse of a different color.

Bernie Burk


I don't want to get too far afield, but your last comment is not correct. We don't all have a "reasonable expectation of privacy that precludes taping without our consent." Residents of California have such an expectation; residents of New York do not. There is no authority of which I'm aware that one-party consent taping in New York (or other one-party-consent jurisdictions) is tortious or otherwise actionable as an invasion of privacy even though it does not violate the one-party consent law. But I would welcome learning something new.

Big company call centers warn that the call may be recorded for good customer relations, and legally either because the call center is located in a two-party-consent jurisdiction, or because the call center may RECEIVE calls FROM customers located in two-party-consent jurisdictions.

Just to focus things back on the substance of the post, the question directly under discussion here is whether the rules are different if the secret taper is a licensed attorney.



"I often tell my students that it's a pretty good approximation of what’s a “material development” within the meaning of Rule 1.4 to say you have an obligation to tell your clients things about which it’s reasonably likely they would or rationally should care. "

That sounds a bit off; there has to be a connection to the matter under dispute. My client might love to hear the salacious details of my private life (were there any), but just because they care doesn't mean they are entitled to this information.

Jack Chin

Sorry if I missed mention of this, but there are several relevant opinions of New York bar associations which though nongovernmental are sometimes influential in the courts. They include an opinion of the Association of the Bar of the City of New York ( and of the New York County Lawyers Association. NYCLA Eth. Op. 696, 1993 WL 837936. To dramatically oversimplify, the latter concludes that secret recording does not violate the ethics rules per se, and was cited in ABA Formal Op. 01-422 which is to the same effect. The City Bar opinion allows "undisclosed taping of a conversation if the lawyer has a reasonable basis for believing that disclosure of the taping would impair pursuit of a generally accepted societal good." If Mr. Cohen argues that his client was untrustworthy, or that he feared his client was engaging in criminal activities, he may have a pretty good claim that the recording was consistent with existing authority. None of this goes to the disclosure, which seems very problematic.

Steve L.

My analysis applies only within the attorney-client relationship, and not at all to opposing counsel or third-party witnesses.

Scott Pruitt Edndowed Chair in Enviconmental Justice

Trump's circle tends to look out for their selfish selves. It's the Rickey Ricarrdo syndrome, "I, I, I, I." He wouldn't recognize nor attract somebody with a strong core or soul that would respect a fiduciary relationship. He is not a solid guy...So, solid guys walk away from Rex Tillerson.



My belief that we all have a reasonable expectation of privacy that precludes taping without our consent a conversation in private with one's attorney is subject of course to qualifications, as in my comment above acknowledging that the (criminal) law in NY is to the contrary. I think you agree that the fact that NY criminal law is to the contrary is not determinative of disciplinary liability. You do question liability in tort.

As Jack Chin I believe agrees, "None of this goes to the disclosure, which seems very problematic." (My formulation: "Perhaps the analysis should turn not on recording, but RELEASING the recording. That is, as they say, a horse of a different color.")

We might not fault an attorney who secretly records his client if he keeps the recording a secret from EVERYONE, including his client. When that attorney leaks the recording to the world, to the detriment of and for the purpose of damaging his client, then the issue is, perhaps, more than just violation of vague rules of ethics.

Bernie Burk


Thanks for pointing out that authority, which takes what I might describe as a middle path analytically between the approach Steve Lubet has proposed and the one that I described in my post, but by and large reaches the same conclusions that both Steve and I do. If anything, the Bar Opinions cited (including ABA Formal Ethics Opn. 01-422) are MORE permissive of secret taping of a client conversation than Steve or I would be inclined to be.

That said, with all respect I would question the example you provide of acceptable taping of a client conversation. If the lawyer fears the client will lie about their communications (what facts the client disclosed; what instructions the client gave; etc.) and try to throw the lawyer under some approaching bus, I think we're stumbling into the territory of Rule 1.7(a)(2) (conflicts between the personal interests of the lawyer and the interests of the client), and the solution is not secret taping (even where legal), but withdrawal or other means of self-protection consistent with the lawyer's continuing fiduciary duty to the client, which Steve and I both would argue that self-protective secret taping is not.

Nevertheless, the state and local bar and ABA opinions are helpful in addressing the question of secret taping.


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