APS Lawyers - Trump/Cohen Tape?

[Ben]

Can you legal guys explain this to me? I don't understand how this tape can become evidence. I read somewhere that because they discussed a civil, not criminal fraud, it somehow makes it admissible as evidence. I thought attorney/client confidentiality was pretty absolute?

[230RN]

It's only absolute if the conversants are Democrats or in the confessional.

Otherwise, all bets are off.

Terry

[Brad Johnson]

IIRC, Cuomo wasn't his client so I presume attorney/client confidentiality doesn't apply.

I wonder if there are some kind of phone conversation recording legalities at play. Fed law says calls can be recorded if at least one person participating in the call is aware it is being recorded. Some states require all parties in the conversation to be aware of the recording. Also, if the call was across state lines he may have run afoul of ICC issues.

Even if there is no legal issue with the recording there certainly is cause for filing an ethics complaint with his state Bar Association. He recorded a conversation after saying he wouldn't. Performing an act after explicitly stating you won't is a blatant breach of professional ethics in pretty much any state-level licensing entity I can think of.

Brad

[Ben]

IIRC, Cuomo wasn't his client so I presume attorney/client confidentiality doesn't apply.

Maybe I'm getting things mixed up, but I thought Cohen taped conversations with both Trump and Cuomo. I was speaking specifically to taping his client, Trump (or a lawyer taping any client and then having that tape allowed as evidence).

[DittoHead]

I'm not sure that really applies here since Cohen himself released the Trump tape (through his lawyer). It certainly breaks Cohen's duty of confidentiality but that's just ethics  and he might claim it's being released to defend himself anyway (Model Rule 1.6(b)(5))
https://lawyerist.com/difference-confidentiality-attorney-client-privilege/

[Brad Johnson]

Maybe I'm getting things mixed up, but I thought Cohen taped conversations with both Trump and Cuomo. I was speaking specifically to taping his client, Trump (or a lawyer taping any client and then having that tape allowed as evidence).

If it's a tape of him speaking with his client and the client hasn't authorized the release, I would think that crosses a serious legal line. But, hey, I'm not an attorney.

*edit to add* Went back to the Fox News story. It looks like there are two parts.

First is Cohen's conversation with Chris Cuomo from CNN. Cohen specified he wasn't recording the conversation when he really was. Cuomo wasn't his client so no client/attorney privilege on releasing the tape, or so I would presume. That still leaves a big professional ethics question with regard to doing something when you specifically stated you weren't.

Second is Cohen's release, via his attorney, of a conversation with Trump about purchasing story rights to Karen McDougal's story of the purported 2006 affair with Trump. This is a big attorney/client question. If Trump didn't authorize the release then Cohen is in heap big hot water. Possibly his attorney, too, for being complicit in the release.

In general it sounds like this guy is a complete slimeball with nothing in the way of personal ethics and very little in the way of professional ethics.

Brad

[Ben]

*edit to add* Went back to the Fox News story. It's specific to Cohen's conversation with Chris Cuomo from CNN. Cohen specified he wasn't recording the conversation when he really was. Cuomo wasn't his client so no client/attorney privilege on releasing the tape, or so I would presume. That still leaves a big professional ethics question with regard to doing something when you specifically stated you weren't.

Brad

Different tape - I just doublechecked:

https://www.cnn.com/2018/07/24/politics/michael-cohen-donald-trump-tape/index.html

[Brad Johnson]

Different tape - I just doublechecked:

https://www.cnn.com/2018/07/24/politics/michael-cohen-donald-trump-tape/index.html

Ah... roger that.

Amended my statements above to reflect two different conversations being discussed.

Brad

[Hawkmoon]

IIRC, Cuomo wasn't his client so I presume attorney/client confidentiality doesn't apply.

I wonder if there are some kind of phone conversation recording legalities at play. Fed law says calls can be recorded if at least one person participating in the call is aware it is being recorded. Some states require all parties in the conversation to be aware of the recording. Also, if the call was across state lines he may have run afoul of ICC issues.

Even if there is no legal issue with the recording there certainly is cause for filing an ethics complaint with his state Bar Association. He recorded a conversation after saying he wouldn't. Performing an act after explicitly stating you won't is a blatant breach of professional ethics in pretty much any state-level licensing entity I can think of.

There are only twelve states that make that law two-party (in actuality, all-party) consent states -- absent a court order for a wire tap. New York is not one of those states, and since the federal law is one-party consent, taping a phone conversation doesn't violate any federal laws. I don't think attorney-client privilege in any way prevents an attorney from taping calls with his clients, but it should prevent his releasing the tapes and, in the case of the government seizing them, it should prevent the use of the tapes in any legal proceeding. Trump was Cohen's client at the time, so attorney-client privilege certainly applies.

And Cohen definitely should not have discussed the contents of any such tapes with the media.

[DittoHead]

As far as using it in legal proceedings, the "special master" sorted out what was privileged and what was not.

Cohen and Trump’s legal teams have not challenged any privilege determinations by the special master since Judge Wood ruled that they would have to do so on the public record.

no one seems to object...

"I don’t think anyone can suggest that this represents anything where the president did anything wrong, and that’s the reason why we waived [attorney-client privilege]," Giuliani told Fox News.

I mean, at this point who is going to abandon Trump over a 2nd alleged playboy bunny affair anyway? Now if it turns out he paid for that 3rd playboy bunny's abortion - then maybe he'll lose some support but I'm starting to doubt even that.

[Perd Hapley]

As far as using it in legal proceedings, the "special master" sorted out what was privileged and what was not.no one seems to object...
I mean, at this point who is going to abandon Trump over a 2nd alleged playboy bunny affair anyway? Now if it turns out he paid for that 3rd playboy bunny's abortion - then maybe he'll lose some support but I'm starting to doubt even that.

The chronology might be important there. Trump's already been forgiven for his past support of abortion.