The Friday Whine is a casual email to friends and colleagues and contains three things: An ethics update, and a wine recommendation. If you see text in blue, it is a link to an article or information.
Yes, I’m Going to Talk About Michael Cohen
Today I am giving the ethics lecture at the Annual Meeting of the National Association of Criminal Defense Lawyers. I had this whole presentation prepared – a discussion of various ethics issues that lawyers typically face.
Then came Tuesday.
Michael Cohen, President Trump’s former lawyer, released a tape of him speaking with his client.
You may want to ask me how I handle these types of situations, but unfortunately I will fail you today.
I’ve never taped a conversation with a client.
I never will.
I could see being a probate lawyer and having a client ask to be taped, or taping a client to prove something in defense of the client (although I can’t think of what that would be), but taping a client without the client’s knowledge? I’ll pass.
In the midst of all this, Harvard Law Professor Ronald Sullivan I think put it best: “If you feel the need to tape a client, the better move is to withdraw from the representation.”
You may already know that in New York, where this taping occurred, it’s not illegal. New York is a “one party consent” state. This means that only Michael Cohen had to consent to the recording.
But is it unethical?
The FBI seized the tape, and rumor is that there are 11 more.
Michael Cohen didn’t violate privilege or confidentiality as a result of the raid of his office.
But he then released the audio.
A lawyer can divulge privileged information when the lawyer is in a dispute regarding the representation.
President Trump said he didn’t know about the payments to various women. Michael Cohen knows that’s not true. But the President didn’t raise a dispute regarding his representation, and if a lawyer was permitted to divulge privileged or confidential information (there is a difference) just because the lawyer knows what the client is saying is false, no one would confide in a lawyer.
I think Michael Cohen has a problem regarding his disclosure of this audio, but I don’t think he cares. I’m thinking Bar discipline is the least of his concerns right now.
I’m a big fan of Sauvignon Blanc. It’s one of those whites though, that turns a lot of people off.
One of my favorite Sauvignon Blancs is from Matanzas Creek. It’s usually about $18, and available at Total Wine.
But this Saturday, you can get it at Sunset Corners. For $12.99.