Once again current events provide us opportunities for ethical reflection. Much in the news these days is Michael Cohen’s tape-recording of phone calls with his then-client, then-candidate Donald Trump, with one such tape apparently about the payments that Trump might make to “our friend” David Pecker (yes, Virginia, that really is his name) and the National Enquirer to acquire Playboy model Karen McDougal’s rights to her story of her earlier affair with Trump. There is spirited disputation whether the recording documents criminal behavior on Trump’s part, a question I leave mostly to others. Today I’ll focus on the tape and the lawyer who made it, and explore the eternally recurring (and often wildly informative) question “Can he do that?”
The President has tweeted (argh, so little good ever follows those words) that Cohen’s taping is both “totally unheard of and perhaps illegal.” Anything to that? I’ll discuss it in all the excruciating detail you deserve after the jump.
Is Cohen’s secret taping of conversations with his client or others “unheard of”?
No. While I don’t think anyone would call it common, there are plenty of instances of lawyers' taping conversations with clients and others. (Spoiler alert: This is a dreadful idea, and I’ll discuss why in a minute. But some lawyers do it anyway.) There are a variety of reasons (to the extent that lawyer-tapers actually think about their reasons) that have been offered for the tactic, varying with the circumstances. The two most common probably are (1) that it’s a form of note-taking that’s easier and more accurate than actually taking notes; and (2) that it’s a way of pinning down interlocutors (who may be clients, adversaries, or third parties) in their own words when the lawyer is concerned that they may deny the existence or substance of a conversation later. We currently don’t know which of these (if either) Cohen may have had in mind. Apparently he surreptitiously taped a fair number of his telephone conversations (the FBI reportedly seized about 100 recordings of various people from Cohen pursuant to search warrant), and the President’s lawyers have reportedly waived the attorney-client privilege with respect to about a dozen of those involving Trump.
(As an aside, this raises the extremely interesting question why Trump’s lawyers would waive his privilege like this, which Cohen and his legal team could never have done unilaterally. Trump’s privilege waiver is a very unusual move. The best explanation I’ve heard was from two experienced federal prosecutors on CNN, who speculated that the dozen recordings as to which Trump waived would so clearly fall within the crime-fraud exception that it was better just to abandon the privilege rather than engage in protracted and highly publicized litigation to preserve it that was likely to fail. After all, the words “crime-fraud” would appear in the papers every day for weeks, inevitably followed by a humiliating ruling exposing the tapes anyway and finding that they were potential evidence of a crime or fraud in which the President participated with his lawyer. We’ll see if that explains the decision when we eventually hear the tapes, but the only one now extant is disturbingly consistent with this view. And Jiminy Cricket, think about what the plausibility of that explanation implies about the current state of American government!)
Is Cohen’s secret taping of conversations with his client or others, or a tape’s subsequent disclosure, “illegal”?
This leaves the question whether Cohen’s taping was illegal. There are a number of different perspectives on this question depending on which laws you have in mind. Some of these perspectives are clear, others less so.
Was Cohen’s secret taping illegal bugging? If the question is whether the taping violated laws forbidding taping of phone conversations, the answer is pretty clearly no, at least as to Trump. The laws in question are state laws limiting eavesdropping on or recording telephone (and sometimes live) communications by persons other than law enforcement. These laws differ from state to state. New York, which is where both Cohen and apparently Trump were located at the time of the taped conversation that has recently been released, requires only one-party consent—that is, if one party to the conversation (here, Cohen) consents to taping the conversation, he doesn’t need to have the other party’s agreement, or even tell him, in order to do so. Other states, such as California, require two-party consent, but this is a minority view. There are interesting conflicts-of-laws questions that arise when the parties to a phone call are in different states with different rules, but we don’t know that to be the case here.
Could Cohen’s taping be “illegal” in any other sense? Maybe. There are no criminal laws I know of other than the anti-eavesdropping laws discussed above, which typically make taping, when it is forbidden, a misdemeanor as well as a tort. But there’s more to say if we focus on Cohen’s taping of his calls with Trump, because Trump’s status as his client created duties that Cohen did not owe to adversaries or third parties. (His duties to those other people are pretty much summed up in the anti-eavesdropping laws just discussed, unless he affirmatively lied to anyone about taping, in which case he could have committed ordinary fraud. But that does not appear to have happened—the taping was secret.)
Was Cohen’s secret taping of conversations with his client a tort? So what about duties that arise out of the attorney-client relationship? One thing that is fairly clear is that any civil liability for damages based on duties arising out of the attorney-client relationship is a longshot, because even assuming Cohen’s conduct was a breach of a lawyer’s duty, it is a very tough sell to claim that the taping (or for that matter the secrecy or later disclosure) proximately caused any compensable monetary harm. Beyond that, however, things get murkier.
Was Cohen’s secret taping or later disclosure of conversations with his client a disciplinary violation? The taping might very well violate rules of attorney ethics given the surrounding circumstances, and thus result in Cohen’s professional discipline. (This likely doesn’t matter as a practical matter either, because Cohen is almost certain to end up pleading guilty to various felonies that will cause the forfeiture of his law license. But indulge me anyway, because the duty and breach questions are genuinely interesting. If you’re into that kind of thing. Which, if you’ve read this far, you are.)
Was secret taping a disciplinary violation of Cohen’s duty of candor? Did Cohen violate his duties to his client (Trump) by taping phone conversations with him without telling him? Maybe. Let’s assume the client didn’t know and had no reason to know about the taping (which Cohen’s lawyer, Lanny Davis, has obliquely suggested might not be the case). The Washington Post says “in New York, no rule says a lawyer must . . .” “tell a client about a recording device.” That’s literally true, but I’m not sure it’s a fair and complete reading of the relevant attorney-ethics rules New York does have. (New York’s rules are similar in all respects relevant here to the ABA Model Rules, but I’ll quote New York’s Rules because they’re the ones that actually apply.) New York Rule of Professional Conduct 1.4 requires a lawyer to inform her client about “material developments in the matter,” “reasonably consult with the client about the means by which the client’s objectives are to be accomplished,” and “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Beyond certain common events (the classic examples being settlement or plea offers, which the rule mentions explicitly but certainly not to the general exclusion of others), the scope of these candor requirements has never been especially clear. 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. Another way of looking at it, I tell them, is that not much good happens in a conversation that begins “why didn’t you tell me . . . ,” so if you can imagine your client, or a rational client, saying that to you about something you know and the client might not, you should bring it up. Arguably that’s a bit broader than the Rule, but arguably it’s not, and in all events it’s a good practical interpretation to live by. On that measure, we can feel fairly sure that Trump would have wanted to know whether he was being taped, and almost certainly would have objected if he had been told. I’d call that at least a possible violation of Rule 1.4.
Did the secret taping reflect or create a conflict of interest requiring disclosure and consent? An alternative perspective is to look at the taping, and Cohen’s engagement as hush-money “fixer” more generally, as creating or reflecting a conflict of interest. New York Rule of Professional Conduct 1.7(a)(2) prohibits an engagement if “there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own financial, business, property or other personal interests.” If Cohen was taping his client because he was afraid Trump would lie about their conversations later and throw him under the bus, then it sure seems like there is a “significant risk” that Cohen’s judgment could be “adversely affected” by his own interests, which he apparently feared might conflict rather flagrantly with his client’s. The only way the engagement could properly go forward is after full disclosure and client consent confirmed in writing, which of course never happened.
Did Cohen’s secret taping or disclosure of conversations with his client violate his duty of loyalty? It also could be argued that taping secretly without telling, or disclosing the tape or its contents to the public, was a violation of Cohen’s fiduciary duty of loyalty to Trump. The problem with this argument is that a tort claim for breach of fiduciary duty probably wouldn’t go very far for lack of causation and damages. And the Rules of Professional Conduct don’t contain any generalized prohibition of disloyalty that could be the basis for discipline.
Did Cohen’s recent voluntary disclosure of the tape to the public violate his duty of confidentiality? What about Cohen’s recent disclosure (through his lawyer, Lanny Davis) of one of the tapes? Did that violate a duty to his client? Cohen’s public disclosure of the tape without his client’s permission pretty clearly violated his duty of confidentiality, codified in New York Rule of Professional Conduct 1.6(a). To head off one meritless objection, it doesn’t matter that Trump has waived the attorney-client privilege as to this tape. The duty of confidentiality is broader than the privilege, and forbids Cohen from voluntarily disclosing the tape or its contents without Trump’s permission. This is true even if the contents were never privileged, unless they are “generally known,” which at the time of disclosure they weren't. (And no, the specific knowledge of a few prosecutors is not enough to make them “generally known” for these purposes.)
Is there an available exception to the duty of confidentiality? Frankly, I don’t think so. Cohen was not “prevent[ing] the client from committing a crime” (NY Rule 1.6(b)(2)) because any crime was already committed, and because prosecutors already had the tape anyway. Nor was Cohen trying to defend himself against “an accusation of unlawful conduct” (NY Rule 1.6(b)(5)) because he has not been charged with any crime, nor was the disclosure tailored to use in any civil litigation ongoing with Stormy Daniels or Karen McDougal. And at least as importantly, what that tape shows is that if any crime was committed, Cohen was deeply and personally involved, which makes it a stretch to contend he was using the tape to "defend" himself. Cohen might say he was using the tape as part of an overall personal defense strategy to show that his client (Trump) is at least as guilty as he is (to flip and get a better deal from the government; to extract a pardon; to divert attention from his own wrongs), but this pushes Rule 1.6(b)(5)’s “self-defense” exception beyond its known scope.
And let’s be clear: Whether Cohen or anyone else believes that the taping and disclosure was good for the country and its democratic processes is not a basis for Cohen to violate his duties to his client. There are plenty of Americans who believe that both Cohen and his client are bad people whose conduct has been and continues to be corrosive to truth and good government (not to mention domestic tranquility and world peace). But Cohen doesn’t get to follow a different and less restrictive set of ethical rules because his client may be a scoundrel. Lots of lawyers represent scoundrels every day, and we expect them to provide their undivided loyalty and resolute confidentiality to those scoundrels, regardless of how utterly undeserving they may prove to be. (For example, many of us consider public defenders to be heroic upholders of an indispensable pillar of our criminal justice system, regardless of the terrible transgressions of many of their clients. We expect them to defend their clients zealously and keep their confidences; indeed, anything less would violate the Sixth Amendment.) However hateful and thuggish his earlier conduct on Trump’s behalf may have been, Cohen is entitled to the same latitude. Which doesn’t, of course, mean that everything that he or any other lawyer did is necessarily OK—if he committed crimes, by all means cuff him, book him and, to coin a phrase, lock him up. But don’t allow him to violate his oath as a lawyer because you despise his client. That’s how justice dies.
Hurry up, already—was the taping and disclosure OK or not? I’d say that, while it’s not without question, Cohen’s secretly making and then disclosing the tape probably violated lawyer ethics rules. And for any lawyers keeping score at home, let’s also be clear that, even if Cohen’s conduct somehow managed to skirt every ethical shoal just discussed, it would still be what I believe Blackstone referred to in the Commentaries as a dumb idea. If he did it because he thought it was an easier and more accurate way to take notes, it was lazy and stupid. Notes are usually subject to the attorney work-product doctrine; taped conversations rarely are. In more usual circumstances, that difference could really matter. And the meaning of taped conversations is disputed as often as notes or memory (witness here the ongoing public debate between Rudy Giuliani and Lanny Davis about what the revealed tape means that Trump did or did not know or intend). Here Cohen just created powerful evidence of his own participation in a conspiracy to commit a felony (violation of campaign finance laws).
And if he created the tape because he mistrusted his client and feared that the client would throw him under the bus someday, he should simply have walked away. (Yes, I know it’s never simple to walk away. But as a family friend advised a young Thurman Arnold as he began a storied legal career, the time may come when either you or your client is going to prison, and if that time comes, you must make sure it is your client.) If this was an effort to create and preserve self-exculpatory evidence, it was an epic fail. All Cohen did was create the means to drag Trump under the bus with him. (Picture the fool confronting his derisive adversary, pointing the gun at his own head and threatening, “Don’t laugh—you’re next!”) This was bad ethics, bad lawyering, bad tactics, and bad judgment. But what we already knew about Michael Cohen had taught us to expect that. The fact that he’s holding the truth above the swamp water as he himself goes under doesn’t begin to redeem him or what he did.
--Bernie
anon:
Sorry, but your second comment is still not correct. ABA Formal Ethics Opinion No. 01-422 and a number of state and local bar ethics opinions essentially agree that where there is a proper purpose for the taping, and the taping is proper under applicable law (for example New York law and the law of multiple other states authorizing one-party consent), there is no ethical violation, and no disciplinary consequence, for secret taping. Secret taping of nonclients will often be easy to find permissible under this standard. Secret taping of clients will often be much more difficult to justify. But the bottom line here is that in many jurisdictions many kinds of secret taping will have no legal consequences of any kind, and thus it is not accurate to say that residents in those states have a reasonable expectation they will not be taped without notice.
I hasten to add that, even when it is legal, secret taping is generally a bad idea because it interferes with otherwise available work product protection and can make the lawyer a witness to disputed facts.
--Bernie
Posted by: Bernie Burk | July 28, 2018 at 01:18 AM
Why is the ABA even part of this serious discussion? The ABA is nothing more than a trade group handing out stress balls and mints at their show. Nothing more. Show me something from a State regulator.
Posted by: Scott Pruitt Edndowed Chair in Enviconmental Justice | July 28, 2018 at 01:28 AM
Bernie
You insist on misstating my view, and you are focusing on the wrong end of the elephant to boot! Since you insist on framing a discussion by starting with "you are wrong" let me respond in kind. Despite an incredibly and unnecessarily long winded analysis, you seem to be completely missing the point of the matter.
My comment was: "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."
As for the issue you appear to be limiting yourself to (which is not the issue, btw), secret taping that remains secret, as stated above, I would not find any violation in the taping per se. Absent criminal liability for the taping per se, it is the use of the recordings that is at issue.
One could expand that inquiry to involuntary production, pursuant to law, or inadvertent disclosure, but you haven't even scratched the surface in those respects.
Posted by: anon | July 28, 2018 at 01:30 PM
BTW, you state the issue, with respect to tort liability: "proximately caused any compensable monetary harm."
Have to give that issue spot a C, Bernie. That isn't the issue with respect to "tort liability."
Posted by: anon | July 28, 2018 at 01:55 PM
anon: Troll on, my friend. The record is adequately clear.
--Bernie
Posted by: Bernie Burk | July 28, 2018 at 02:01 PM
Yes, it is, my friend. "Troll" is a completely inappropriate, emotional retort, and not in any way accurate, responsive or thoughtful.
I can recall similar outbursts. Students must love it!
Posted by: anon | July 28, 2018 at 04:54 PM
Trolling would be calling somebody a die hard Trump supporter.
Posted by: Scott Pruitt Edndowed Chair in Enviconmental Justice | July 28, 2018 at 07:42 PM