Ignore The Spin: It Was Unethical For Michael Cohen To Secretly Record His Client, Donald Trump

This morning the Washington Post tries to spin the clear ethics violation by Michael Cohen when he surreptitiously recorded his client, Donald Trump, when his client didn’t know or have any reason to suspect that such a recording was taking place. It was unethical. I have never spoken to a lawyer or ethics authority who didn’t believe such a recording would be unethical, at least until such an ethics breach was made against this particular betrayed client. Now, since the legal profession is one of many that have abandoned integrity and professional standards in the fever of anti-Trump madness, I’m sure several, maybe many, will change their tune. You know: they don’t want their friends to be angry with them.

Yes, Cohen’s taping was legal, because it occurred in New York, where only one party to a conversation has to know it is being taped. That is irrelevant to the ethics breach at issue. For a lawyer to tape a client secretly is always unethical. That’s my position, and I know of no persuasive argument against it. The Post article says that the matter isn’t clear cut. Oh yes it is.

Until 2001, there was little dispute that a lawyer was violating Rule 8.4, which pronounces it misconduct for a lawyer to engage in misrepresentation, dishonesty, fraud or deceit. Taping anyone secretly is misrepresentation. Does anyone want to dispute that? Try. If I am talking to you privately, and you do not tell me that I am being recorded, then you are representing to me that I am NOT being recorded, unless our previous conversations were recorded and I knew that. A few states just ducked the issue, and held that a lawyer could do what any other citizen could do in a state that made one party recordings legal. The American Bar Association, however, right through the 20th Century, held that it was per se unethical for a lawyer to surreptitiously tape anyone.

The absolutist position was an Ethics Incompleteness Principle accident just waiting to happen. In other words, there had to be exceptions, and since almost all states allowed District Attorneys to surreptitiously record suspected criminals without the threat of ethics sanctions, exceptions were already recognized. Thus, in 2001, the ABA revised its position with equivocal, muddled, Formal Opinion 01-422, “Electronic Recordings by Lawyers Without the Knowledge of All Participants,” which the ABA summarized this way:

A lawyer who electronically records a conversation without the knowledge of the other party or parties to the conversation does not necessarily violate the Model Rules. Formal Opinion 337 (1974) accordingly is withdrawn. A lawyer may not, however, record conversations in violation of the law in a jurisdiction that forbids such conduct without the consent of all parties, nor falsely represent that a conversation is not being recorded. The Committee is divided as to whether a lawyer may record a client-lawyer conversation without the knowledge of the client, but agrees that it is inadvisable to do so.

It does not “necessarily” violate the ethics rules because, the opinion explains (as various state opinions have as well), sometimes recording a third party serves the interests of justice, as when, for example, a client is trying to show domestic abuse, or when there is an allegation of illegal loan or housing discrimination. 01-422 wanders into Clintonesque rhetoric, however, when it states,

“…That a lawyer may record a conversation with another person without that person’s knowledge and consent does not mean that a lawyer may state falsely that the conversation is not being recorded. To do so would likely violate Model Rule 4.1, which prohibits a lawyer from making a false statement of material fact to a third person. The distinction has been recognized by the Mississippi Supreme Court, which held in Attorney M. v. Mississippi Bar33 that nonconsensual recording of conversations by lawyers generally is not a violation of ethical rules, but then held in Mississippi Bar v. Attorney ST34 that a lawyer who falsely denied to a third person that he was recording their telephone conversation had violated the proscription of Rule 4.1 against false statements of material fact in the course of representing a client.”

I have used a laugh line about this passage in my seminars for years, that it must have been imported from the Soviet Union branch of the ABA. The opinion is seriously asserting that a lawyer is not falsely representing that a private conversation isn’t being recorded if his words, conduct and demeanor give no hint that it is being recorded, as long as he doesn’t say out loud that the conversation isn’t being recorded! That means that the ABA believes that in 21st Century America, we should all assume that we are being recorded, even when we are meeting with a professional pledged and duty-bound to be honest, transparent and loyal toward us (and paying him or her for that guarantee!), unless the lawyer tells us otherwise. The lawyer who tapes his or her client, sayeth the ABA, is being honest and truthful, because he assumes, rightly, that the client already knows or should assume that the recording is being made.

I do believe that because of the current state of technology, a lawyer is obligated to warn any client that any conversation through electronic means is at risk of being captured, hacked, or recorded by others. However, saying that when its is the lawyer who is surreptitiously recording a conversation is pure deceit.

The opinion says that “it is almost always advisable for a lawyer to inform a client that a conversation is being or may be recorded, before recording such a conversation.” What the heck is that supposed to mean? Is it advisable because not doing so is a breach of trust? Because the lawyer might be punished in most jurisdictions? Because if the fact that he did this to a client gets out, no one in his or her right mind would hire such a lawyer? What is a weasel word like “inadvisable” doing in an ethics opinion anyway?

The opinion goes on to say,

“Clients must assume, absent agreement to the contrary, that a lawyer will memorialize the client’s communication in some fashion. But a tape recording that captures the client’s exact words, no matter how ill-considered, slanderous or profane, differs from a lawyer’s notes or dictated memorandum of the conversation. If the recording were to fall into unfriendly hands, whether by inadvertent disclosure or by operation of law, the damage or embarrassment to the client would likely be far greater than if the same thing were to happen to a lawyer’s notes or memorandum of a client conversation. …The relationship of trust and confidence that clients need to have with their lawyers, and that is contemplated by the Model Rules, likely would be undermined by a client’s discovery that, without his knowledge, confidential communications with his lawyer have been recorded by the lawyer.”

“Likely”?

Ya think?

People ask me why I don’t belong to the American Bar Association. This is one of the many reasons.

In its artical about the issue, the Post resorts to this ringing endorsement of the practice by Rebecca Roiphe, a professor at New York Law School, who told the newspaper that secretly recording clients “is definitely unusual and almost always a really bad idea…but  not necessarily a clear ethical violation.”

It’s a clear ethical violation, even when the victim is Evil Donald Trump. The fact that some legal ethics experts are confused or misguided doesn’t make the practice any less wrong. As always, there are exceptions, and the instance where a client has made criminal threats against the lawyer is one cited in various state opinions. That situation was not involved in Cohen’s unethical recordings, however.

The answer to the question of whether Cohen’s recordings were a breach of the attorney-client relationship and both the spirit and the letter of the Rules of Professional Conduct is yes.

 

 

25 Comments

Filed under Government & Politics, Law & Law Enforcement, Professions, Science & Technology

25 responses to “Ignore The Spin: It Was Unethical For Michael Cohen To Secretly Record His Client, Donald Trump

  1. Other Bill

    Law schools and their faculties are not at all immune to the catastrophe that had overwhelmed the American academy. Any reporter sufficiently familiar with the law to be dangerous can get a faculty member of any number of prestigious law schools to say whatever the reporter wants to be able to include in a story.

  2. Steve-O-in-NJ

    (shrug) Like I said in an earlier post, Trump is the kid everyone in the school hates, so the rules that would normally apply simply don’t exist for him. It’s like when one member of the family has a crappy driving record and the family policy reads “all coverages and benefits excluded for x.” In this case it’s “all protections, standards, and rules excluded for Donald Trump and those who voluntarily choose to associate with him.”

  3. Glenn Logan

    The answer to the question of whether Cohen’s recordings were a breach of the attorney-client relationship and both the spirit and the letter of the Rules of Professional Conduct is yes.

    Undoubtedly right.

    Even worse, Cohen is volunteering disclosure of these recordings either in hopes of saving his bacon from the law, or to make the prosecutor think he’s turned on Trump. It is a thing of evil to watch.

    I know this – from now on, I am going to require every lawyer I retain to assert to my face he is not recording our conversation. It’s obvious that the ABA wants us to mistrust our attorneys by endorsing the law of the jungle, so I’m happy to oblige.

    • valkygrrl

      Uh [Citation needed]

      Given that Cohen is an unethical lawyer, he worked for Trump. Duh.

      But what is this volunteering disclosure? The recordings were seized by the FBI, Cohen had no say in that. Now they’ve gone through the process of a special master deciding if they’re privileged, not sure how that all came out because, with at least one recording, the Trump people decided to waive privilege and to all appearances are the ones who leaked it to the media.

      I have seen no information about Cohen bartering with others or if he’s even able to. It wouldn’t be in his interest to announce it, it wouldn’t be in SDNY’s interest to announce it so what source do you have that this has happened?

      • “Given that Cohen is an unethical lawyer, he worked for Trump. Duh.”

        I’m sure you don’t mean that to sound as ignorant as it sounds. Virtually all criminal defense lawyers, white collar defense lawyers, corporate defense lawyers—essentially most lawyers—work for unethical clients. Lawyers have an obligation to provide access to the law, and the character of the citizen is irrelevant to that duty. Thus representing the unethical is called “practicing law.”

      • Glenn Logan

        Well, Cohen’s lawyer and cohen himself have been giving the recordings, at least some of them, to CNN. I’m confident that the FBI didn’t do that.

        Here’s your citation.

        Where the hell have you been?

  4. adimagejim

    While ethics is the foundation of this platform and pointing out unethical behavior is front and center here everyday, I fear fewer and fewer care enough to draw a line at which they will stop or call out others for not stopping. Consequently, they do not care or cannot distinguish what is and is not ethical.

    The ends justify the means seems to be the lesson most often taught at home, in school, business, the press and government.

    Still hoping we can turn this ship around. Worried we cannot.

  5. Once again, the rabid antiTrump crowd does not understand that the rules they break for gain will be broken to their detriment.

    • crella

      Exactly!! I’ve been asking friends, ‘Do you really want these doors opened? Do you really want a lawyer to be able to tape you without your knowledge and then release them?’ ‘Do you really want impeachment to be possible for bad Tweets?’ They have no idea how hard this will all come back to bite them.

      • They have no idea how hard this will all come back to bite them.

        They are going to get a GREAT reminder when we seat three more SCOTUS judges without their ability to stop it.

        • crella

          They’re trying though! Lots of articles about Kavanaugh with scary headlines, and of course the hysteric ‘Roe is about done for’ headlines have increased this week.

      • crella

        ‘to tape you without your knowledge and then release them?’

        should have been ‘and then release it?’ . The doorbell rang mid-post and I didn’t continue my thought well.

  6. JLo

    I am not a US lawyer so discount my thoughts as you wish. But if we begin from first principles, the lawyer is in a fiduciary relationship with his/her client. Every conduct they engage in must be in the interest of the client first. Under what circumstances can recording, without agreement, a confidential lawyer client communication be in the client’s interest first? Seems to me the premise here is to protect the lawyer so the conduct can’t be ethical, per se (had to use some Latin). Is there no overriding principle in effect in these rules?

    As for the exception “where a client has made criminal threats against the lawyer”, I am also a little confused. I understand that this means the threats were made previously otherwise catching such communications in a recording is just moral luck, I think, as the recording is otherwise unethical but somehow saved by what is recorded. In the case where the threats are made previously, given that the lawyer thinks it is important to record in the future, then the threat is being taken seriously by the lawyer. This creates a clear conflict of interest. The lawyer should terminate the relationship, not sit on the fence and pretend to continue to properly represent the client while recording them at the same time. This is a clear “have your cake and eat it too” approach that boggles my mind.

  7. Still Spartan

    I’m pretty sure that Cohen has never paid attention to ethics rules Jack. And, right now I bet his law license is the last thing he’s worried about.

  8. Greg

    If I recall correctly, it is an ethical violation in New York to surreptitiously record a conversation with opposing counsel. There was a case where a lawyer cleverly evaded this prohibition by having a court recorder take down a transcript of a conference call with the other side. Since then, it has been standard practice on conference calls to ask the other side for the name and title of everybody participating in the call. Given that, it’s hard to conceive of a reasonable argument that an attorney may secretly record his client.

    • Greg

      Unfortunately, a brief search on the internet reveals that my understanding of the New York rule is outdated. Apparently, it is now an open question whether a lawyer may surreptitiously record other people. The New York County Lawyers Association has opined that secret recording, even of a lawyer’s own clients, is perfectly ethical. Other New York authorities still hold otherwise, but the courts have not yet ruled on the issue.

      The ABA’s opinion was split evenly between those who thought that recording clients was unethical and those who thought it was permissible but inadvisable (because you might lose business if clients found out you were doing it).

      http://www.newyorklegalethics.com/masking-tapes-an-analysis-of-the-law-of-secret-recording-in-new-york/

      Frankly, that depresses me. I’m with Jack that recording a client who thinks he is speaking to you in confidence is sneaky, underhanded, a betrayal of trust and hence per se outrageously unethical. If it’s ethical to record a client, is it ethical to play the recording to third parties? Presumably, not the parts where he’s asking for legal advice, but what about the part where he pauses in his discussion of legal matters and reveals to you that he is cheating on his wife? Are clients really supposed to tread that carefully, making sure never to talk to their lawyers about anything but the law?

      Anyway, regardless of ethics, I fully expect that all of Cohen’s tapes will be available on YouTube.

      • Glenn Logan

        Sure they will. Cohen himself will make sure of that. After all, if you’re unethical enough to surreptitiously record your client, there’s no reason to believe he won’t just release and tell all. His law license is history, so maybe he can parlay his insider knowledge into a book deal or some YouTube money.

        Nice guy, that Cohen. Makes the Megalodon look like a squish.

      • If it’s ethical to record a client, is it ethical to play the recording to third parties?

        Coming soon to a courtroom near you. Socialists are fine with this: increases the power of the state while dividing the people and reducing freedom.

        Are clients really supposed to tread that carefully, making sure never to talk to their lawyers about anything but the law?

        Well… you knew it was a snake when you picked it up. Most common Americans do not have a cozy relationship with any (let alone their lawyer. Such a relationship requires large amounts of money and a need most common Americans do not have: regular contact with the legal system in a non criminal sort of way.

        Lawyers, over the last 150 plus years, have been mostly responsible for creating law (either in the courtroom, as a judge, or as a politician) and they have rigged the rules to favor… lawyers. They (as a class) have failed in their oaths to impartial justice for all. Everyday Americans understand this, and resent it. They see lawyers as out for themselves, with little regard for their clients beyond how much money they are worth to the lawyer.

        The New York County Lawyers Association has opined that secret recording, even of a lawyer’s own clients, is perfectly ethical.

        Ethics were invented to place a restraint on what one should do, as opposed to what one can do. Our society has cast of such restraints the past 50 years, and ethics have suffered with that freedom. Given the post election freak out, I fear the general practice of ethics, with penalties for professional breaches, is a thing of the past.

  9. Brad Leach

    Rights of surreptitiously recorded Clients.
    Rights to a transcript of the recording?
    Right to know…to what parties…the records have been made available to?

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