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.”
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.