The Cohen Tapes, Attorney-Client Privilege, and Ethics

by: The Knowledge Group

July 26, 2018


Audio recordings seized from former Trump lawyer Michael Cohen are now available to federal prosecutors. The tapes had been in the custody of a court-appointed special master who oversaw a sorting of Cohen’s materials to remove any pieces protected by attorney-client privilege. Note: both the Trump Organization and Cohen have waived attorney-client privilege relating to the 12 tapes, with Cohen under intense pressure to cooperate with the ongoing Mueller investigation.

Trump lawyer Rudy Giuliani has said publicly that the released material includes Cohen’s secret taping of a conversation wherein Cohen suggested a plan to acquire legal rights over the story of a former Playboy model. The model claims to have had an affair with Donald Trump. The taping occurred concurrently with the 2016 presidential campaign.

Law and Ethics

To be on the right side of New York Penal Law §250, only one of two parties to a conversation needs to know it’s being taped. That’s the state rule of one-party consent, and it’s the law in most states. Only a minority of states require everyone in the conversation to consent in order to record it lawfully. Whether and how a New York attorney may ethically record a client without advance disclosure is a murkier matter.

Lawyers have long debated the ethics ramification of attorneys taping conversations without the consent of the client involved. Most lawyers wouldn’t do it.

Cohen would likely claim the recordings were the equivalent of note-taking, and that there was no expectation at the time that the recording would be seized in a federal investigation of Cohen’s business dealings. Yet a lawyer has a duty of loyalty to a client, and a client has an expectation of privacy.

What Attorney Cohen Should Have Foreseen

The risk to this client is no small thing. Cohen had already triggered the campaign finance issue by handling payments in nondisclosure deals.

Now, federal prosecutors may have evidence of a presidential candidate discussing possible federal campaign finance violations. The 5-year statute of limitations applicable to violations would allow for prosecution after President Trump’s current term.

We have recently held a webcast recent discussing the ethical risks and pitfalls of the attorney-client privilege and internal investigations.  This webcast is available on-demand to listen when you want.  This is also eligible for Continuing Legal Education (CLE) credit.  The full details can be found by clicking here.