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.