Tuesday Talk*: The Hannity Exception

Granted, there seems to be no end to the peculiar, no, bizarre, twists stemming from Cooley Law’s most famous graduate, Michael Cohen. But even in the scheme of oddities gone wild, the hearing before Southern District of New York Judge Kimba Wood took a turn that only a made-for-TV hack writer could have devised.

Cohen, whose bona fides as a lawyer have come under scrutiny as a product of his challenging the execution of a search warrant for his records, claimed he was a legit lawyer and had three clients. One, of course, is Donald Trump. The second was Republican fund-raiser Elliott Broidy. The third?

It should be noted, at this point, that it’s entirely possible, and legitimate, for a lawyer to represent only one client. It’s not just Tom Hagen who did so. In-house counsel does so. Other lawyers representing wealthy (and litigious) people do so. There is no rule that says your law practice requires three, or ten, or 1000, clients to be a “real” practice. It’s real if it’s the practice of law.

It should also be noted, at this point, that being a “fixer” does not mean one isn’t a lawyer practicing law. Indeed, much of what we do is fix people’s problems. If one fixes it by breaking a recalcitrant borrower’s kneecaps, then it’s not the practice of law, but if we fix it by suing, then it is. Or by negotiating an agreement, drafting the documents and having them executed. Paying the consideration, on the other hand, on behalf of the client without expectation of reimbursement, not so much.

But given the approach taken by Cohen’s lawyer before Judge Wood, insisting that Cohen was very much a lawyer, and that the records seized constituted privileged attorney/client communications, he was challenged to put up or shut up. And it should be noted (sorry to keep doing this, but wild scenarios require multiple “notes”) that the FBI seizes everything and leaves the problem of sorting it out to others. That means they take what they purportedly came for, what they really want even though they have no probable cause to claim it, and whatever other flotsam is in there as well.

That flotsam is different than the other categories of documents. And contrary to the simpleton’s solution, they can be the private communications of a third party, wholly unrelated to anything involved in the warrant whatsoever. They may be vetted by the taint team, but the team still gets to see them. Or they may not be vetted. I know, you trust the feds to be upstanding folks who would never, but never, be less than totally forthright in the execution of their duties.

Still, the unrelated third party provided his documents, his information, his thoughts (and maybe, but maybe, even naked pics of his wife) to the lawyer under the completely rational belief that they would be protected. That means not even the taint team gets to see his wife naked, or his preference for red pumps. Or whatever.

The existence of a third client may well have been material to Cohen’s claim of practicing law. But was the identity of the client relevant? Salaciously, yes, as the media certainly wanted another person to taint with Cohen’s tiger blood, but did this third party not have a legitimate expectation of not being outed, dragged into the middle of this media circus, tainted by his choice of a lawyer who may, or may not, have committed an offense that has nothing to do with him?

The mystery was solved when Kimba M. Wood, a judge for the United States District Court for the Southern District of New York, ordered that Mr. Cohen’s lawyer, Stephen Ryan, disclose the name of the client in question — who turned out to be Mr. Hannity.

Of course it turned out to be Sean Hannity, because nothing less would have made this more absurd. But Judge Wood required the name to be revealed orally, in open court, with the media salivating for the next “holy shit” moment.

Hard as it may be to lose sleep over Sean Hannity’s right to maintain his privilege, and despite all Hannity had to say after the fact to undermine any claim to it,** the damage was done. The bell was rung. Judge Wood demanded he be outed in public to the media circus in the courtroom, even though Hannity had nothing whatsoever to do with whatever wrong Cohen may have engaged in.

Reactions have been wild. First, because it was Hannity, rather than Joe Smith, it was immediately reduced to a joke. But it could have been Joe Smith. Didn’t Joe Smith deserve to have his confidence protected? Didn’t Kimba Wood have a duty to protect it? Cohen should have fallen on his sword to protect his client, but Ryan wasn’t Hannity’s lawyer. His duty was to Cohen, not Joe Smith (who turned out to be Sean Hannity).

Nor does the insipid, “so don’t go to a lawyer who’s a CRIMINAL!!!” solve the problem. Much as it’s not front page material, there have been numerous legitimate (and excellent) lawyers who have been the targets of the feds, whose offices have been searched, whose other, wholly unrelated, clients got swept up in mess. Maybe the lawyer didn’t commit an offense. Maybe he did, but unrelated to other clients. The possible scenarios are limitless, but the impact on third-party clients remains the same.

And that a group of people wearing “snort my taint” tee-shirts will see their privileged communications is little comfort. Aside from leaks, these unrelated third-parties have a right to keep their confidences from everyone but their lawyer. Even a special master, the least intrusive means of vetting privileged communications, but still eyes that were never meant to see those unflattering pics of the missus.

As someone asked:

Do I understand this right? I put an attorney on retainer for my small business. The attorney gets raided regarding a potential illegality of his. My name gets dragged through the mud and is now on the public record.

Yes, he understands this right. For those inclined toward TrumpLaw, anything that hurts Trump is an exception to the law that can be shrugged off. and only fools and knaves give a damn. But can any person ever trust that his confidences won’t be revealed after this? Or is this just one more bizarre piece of a puzzle that could never impair a reasonable client’s belief in the sanctity of attorney/client privilege, because he’s not Hannity (or Trump) and the lawyer’s not Michael Cohen, the Cooley fixer?

*Tuesday Talk rules apply.

**The creation of an attorney/client relationship does not require payment. Those who argue that absent payment of a retainer there is no privilege are wrong.

26 comments on “Tuesday Talk*: The Hannity Exception

  1. PseudonymousKid

    Forcing the disclosure of the name of an unrelated client is shameful. It is not relevant to Cohen’s alleged crimes. Judges are not having a good year.

    The happy ones about the whole ordeal are the same people who used to be so upset at mass data collection by our government. It was hip for about two days, give or take. No mass exodus from the great evil, facebook. No mass implementation of available privacy technology. They don’t care about who owns almost all of their data. They certainly don’t care about somebody else’s stuff, especially Cohen’s or Trump’s or Hannity’s. Justice is peeking from behind her blindfold, but no one will care enough to notice.

    Clients perspectives won’t change. No one is going to start warning clients that they’re documents are safe unless of course the FBI raids my office and seizes all my files, in which case your documents or even your identity may or may not be safe. Clients still get themselves in messes that need cleaning up. “Cleaner” seems more fitting.

    The FBI can read thousands of pages of mortgage loan documents for all I really care, except its my business to keep the FBI from reading thousands of pages of irrelevant documents. Damn. With that in mind, the government needs to keep the fuck away from attorney-client privilege and show a bit more respect for the very nature of our profession.

    1. SHG Post author

      Much of what they’ll read is boring, irrelevant and of no consequence. But that one page about your most humiliating moment is sufficient.

      1. PseudonymousKid

        It was a little tongue-in-cheek. There are needles in the haystack for sure and the FBI has big magnets, the sophisticated jerks. All the more reason to have meaningful confidentiality.

    2. Dave Landers

      “What exactly do you do for a living?”
      “Cleaner.”
      “You mean you’re a lawyer?”
      [reluctantly] “Yeah.”
      “Cool.”

      (modified quote from The Professional (not a modified quote from The Professionals) )

  2. Skink

    Liam Brennan wrote a piece in WaPo this morning that is just shit. Only rich people hide behind AC privilege, according to him. Not once does he mention the fallout potential for other clients. Besides here, I’ve read it in few places–that’s like two. Nothing from the traditional media.

    Cohen is an easier target because he has only three clients and they are disliked. No one sees relevance of potential to other clients in this instance because of myopia. My book probably isn’t different than most others. Reviewing seven years of my files would include information on hundreds of clients. Some of them are even likable.

    1. SHG Post author

      Kinda like the Times’ editorial that only guilty people have something to hide. In their zeal to fabricate rationalizations to make sure nothing stands in the way of getting Trump, they’re doing some serious damage to the law and making lots of folks stupider. This ain’t good.

    2. Jake

      The key point in Liam Brennan’s editorial is:

      “…even if a client’s identity is intended to be “confidential,” it is only protected by the attorney-client privilege in the rare circumstances under which revealing the identity is tantamount to revealing the legal advice sought.”

      1. SHG Post author

        And this is the sort of thing where you get taken advantage of because you’re not a lawyer, so don’t realize when someone has written something that’s somewhat accurate, yet inapposite to the situation. Don’t feel bad, Jake. If not the useful idiots, who would read Brennan’s drivel, and he would feel low self-esteem.

  3. Richard Kopf

    SHG,

    Mrs. Clinton must be chuckling. What goes around comes around.

    See In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir., amended and Unsealed May 2, 1997) (the majority held that Mrs. Clinton and the White House had no attorney client privilege for notes taken during discussions with Mrs Clinton and her personal lawyer by White House Counsel in meetings, which took place during breaks in and immediately after Mrs. Clinton’s testimony before a federal grand jury in Washington, D.C., concerned primarily the discovery of certain billing records from the Rose Law Firm in the residence area of the White House.) (Kopf dissenting).

    All the best.

    RGK

      1. Richard Kopf

        SHG,

        Once a pimp, always a pimp. Or, the sad spectacle of an old bastard endeavoring to remain relevant.

        All the best.

        RGK

        1. Skink

          Write, and you will feel young as though the Earth was new. Nitwit coverage will be provided.

  4. Jim Tyre

    Tuesday Talk and not even a word about one of New York’s best judges ever dying yesterday? Meaning no offense to Judge Wood, but who wouldn’t have wanted to see Judge Harry T. Stone preside over the Trump-Cohen-Daniels affair?

    1. SHG Post author

      I still keep a stuffed Armadillo in my office. I kind of expected people to have more to say about this issue. Since they don’t, and I loved Night Court, why not?

  5. maz

    > The creation of an attorney/client relationship does not require payment.

    Yes, but can there be an attorney/client relationship in an instance where the supposed client repeatedly claims he had no knowledge the attorney was negotiating on his behalf?

    1. SHG Post author

      You’ve mixed two issues, one of which is relevant to this post and the other isn’t. And you already know the answer, even if you don’t want it to be the answer. Ain’t gonna play that game.

      1. maz

        Actually, that started out as a snark but ended as a serious question.

        Obviously, privilege exists if there was a relationship, even if one party denies it to the heavens. Where does that leave law enforcement, though, in determining when a search warrant exceeds what’s permissible. (Yeah, I know the answer there, too: Never. I mean if that was ever a concern.) Seems like a search + independent vet is the only answer, despite opportunities for harm.

  6. James L. Smith

    Wood’s bio of excesses demonstrates she is a hypocrite, bedhopper, and an exhibitionist. She should be disciplined, and not lightly. While some of the people may believe she did the right thing, she has brought the judicial office into disrepute for the trampling of the rights of the attorney and his client, the priest and his penitent, the doctor and her patient.

    1. SHG Post author

      Your first sentence is utter nonsensical trash. If a judge errs, she gets reversed, not disciplined. Save the crazy crap for elsewhere.

    2. Greg Prickett

      Just out of morbid curiosity, even if Judge Wood is a hypocrite, bedhopper, and an exhibitionist and should be disciplined, what’s that say about President Trump? Should he also be disciplined?

      Or does discipline only apply to those who you don’t like?

  7. John Barleycorn

    If only porn stars had the moves of Robert Balin in open court… When is the last time you have seen a move like his from the gallery even???

    Speaking of which, it would be very interesting to know the history between Mr. Balin and Judge Kimba Wood. I wonder if her statement regarding the SDNY in this matter – “Their integrity is unimpeachable.”- extends to Mr. Balin and or his clients?

    Anyway, stop being such a tease esteemed one!!!

    We know you know what a judge really, really, really means when they break out “unimpeachable” and “integrity”….

    Give it up already!!!

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