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“The opposite of poverty is not wealth; the opposite of poverty is justice."--Bryan Stevenson

Thursday, April 19, 2018

(In)Justice League

So, a couple of legal matters; and this is likely to get really boring really fast, but bear with it.  I read an article recently where Anthony Napolitano on Fox News said Sean Hannity would have to have signed a document making Michael Cohen his lawyer, in order to assert attorney-client privilege.  Well, maybe in New York, but that's not generally applicable.  Without arguing the finer points of state law on the subject, the general rule is:

The [attorney-client[ privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion of law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.

Let's get a bit more particular with that, to illustrate the complexity of the issue.  The Rules of Evidence in Texas provide the following as to who can assert the privilege:

(A) a person having authority to obtain professional legal services or to act on advice thereby rendered, on behalf of the client, or
(B) any other person who, for the purpose of effectuating legal representation for the client, makes or receives a confidential communication while acting in the scope of employment for the client.
Now that would seem to cover Sean Hannity, and to buck up this argument:

That Michael Cohen’s secret third client turned out to be Sean Hannity is almost too good to be true. I get that. But the lawyer in me is not happy that an attorney blurted out the name of a client in open court, when the client didn’t want his identity revealed and had no reason to think it ever would be.  But here's the thing:  that argument rests on a very vaguely asserted "rule," viz:

As a rule, lawyers shouldn’t have to reveal who their clients are. Just like doctors and therapists can’t reveal the names of the people they treat, lawyers in virtually every state have an ethical obligation not to reveal information “relating to the representation of a client” unless the client consents. The prohibition is extremely broad and includes even the names of clients that are not otherwise public. There’s good reason for that rule, and yet many people are questioning why, as a general principle, Cohen’s representation of Hannity would be something Hannity had a right to keep secret.

And that first definition, above, is identified in my source as "[t]he parameters of the attorney-client privilege in federal court, and I don't really see anything in those parameters that says the client's name is a secret.  The advice the client sought, or was given?  Sure.  His/her identity?  We're not exactly outing Bruce Wayne as Batman with that.  Besides, Sean Hannity wants it round and square.  He says he wanted Cohen to keep his name out of things; but he also insists Cohen was never his lawyer, which means Hannity was never a client.

So which is it?  Alper tries to compare Hannity to a tenant inquiring about legal avenues to challenge a landlord; but Hannity is no tenant, and the "embarrassment" of having his name revealed in court (laughter and gasps are cited as evidence) and "there was the added embarrassment that he had been reporting on Cohen without disclosing the relationship."

Reporting?  Hannity is a journalist now?  Or is reporting to be considered synonymous with opining, something Mr. Hannity does for a living.  Certainly if he is a journalist the revelation of Mr. Cohen's professional connection is not just embarrassing, but a breach of ethics.  Certainly that's embarassing, but there are overriding societal interests involved.  And if Mr. Hannity is just opining about Mr. Cohen's status in the world, then again, there are societal interests in why he's so concerned with Mr. Cohen's professional efforts.  Embarrassment is not really the same thing as suffering compensable injuries, or even being a subject of a temporary restraining order because irreparable harm will be done without it (the standard of review for a TRO, which is what the hearing before Judge Woods was about).

Am I celebrating Mr. Hannity's exposure in this matter?  Nah,  It is funny, but mostly because Hannity is a target ripe for ridicule.  And besides, he still insists he never employed Mr. Cohen as a lawyer; so he couldn't expect Mr. Cohen, under any circumstances, to be able to keep his name out of that hearing, or even for Mr. Cohen to protect any documents with his name on them under attorney-client privilege.

Could he?

And then there's the matter of Mr. Cohen directly:

A “longtime legal adviser” for Donald Trump has warned the president his longtime personal attorney, Michael Cohen, will flip on the president “if faced with criminal charges,” the Wall Street Journal reports.

According to the Journal report, Trump sought out legal advice from Jay Goldberg, who in turn informed the president that on a stale of 1 to 100, where 100 is fully loyal to the president, Cohen “isn’t even a 1.”
Goldberg told Trump Cohen will roll over like a puppy to get the Feds to rub his belly and tell him he's a good boy. He's not going to jail for Trump.  Which, yes, is hilarious:

 “So this man, Jay Goldberg, who has worked with the president in the past, two different divorces he’s done,” Cuomo elaborated. “We must presume he’s a family law specialist and people don’t freelance in divorce work. For some reason he said the president called him for advice. I don’t know what he was asking for advice on, but somehow in that conversation he wound up discussing Michael Cohen and his possibility of flipping. That nobody who is facing 30 years stands up. We don’t know that Michael Cohen is facing that.”

“The president is doing dial-for-advice,” panelist John Avlon suggested. “He’s looking for advice.”

“From a divorce attorney?” Cuomo asked incredulously, as co-host Alisyn Camerota sarcastically suggested Trump ask Fox News personality Sean Hannity for “guidance.”

“It’s interesting that the long-time divorce attorney spoke to Gloria Borger and shared this with her,” Camerota offered before laughing and adding. “What happened to attorney-client privilege?”

“Maybe he [Trump] is right, it is dead,” Cuomo quipped. “First of all, it’s just a weird thing to say. Donald Trump should not want Jay Goldberg to suggest that Michael Cohen will flip on him. He is a friend and someone he considers family, so this is insulting for Michael Cohen. To him to go out and talk about this is also strange. I don’t get it.”

“Only the best people, Chris. only the best people,” Avlon smirked.

But it's not that weird; and no,the call to Goldberg isn't privileged communication.  What Trump sought and Goldberg gave sure isn't legal advice, but it reeks of common sense.  And what if Cohen is gonna roll over?  Does Trump pardon him, even pre-emptively (Cohen hasn't been charged with anything, as CNN noted)?  Wouldn't that stop Cohen from talking?

Nope.  And not because New York state could bring charges (maybe); but because Cohen would no longer have the 5th Amendment to hide behind.  Now he can't be forced to talk because he stands in jeopardy of a criminal charge.  Remove that jeopardy with a Presidential pardon, he still has to testify, and now he can't refuse to.  And if he lies, it's perjury, which requires another Presidential pardon (and how many of those does the President hand out?).  Cuomo says Cohen is a "friend" to Trump.  To quote Pogo:  "Good friends, yes, but:  hah!"

What does Cohen get from Trump in exchange for his silence and jail time?  A tweet?


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