Yes, Hannity, Cohen is in fact your lawyer. And you should be glad.

Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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29 Responses

  1. Richard Hershberger says:

    If we get a phone call from some guy who blew through a red light and hit somebody, and wants to know if he can sue, we not only tell him we can’t help him, we follow it up with a letter explicitly stating that we are not representing him.Report

    • Em Carpenter in reply to Richard Hershberger says:

      Ahhh… I did not mean to click report. I am sorry about that! ANYWAY, what I came here to say was… Exactly.Report

      • Maribou, Moderator in reply to Em Carpenter says:

        (No worries, Em, the report button is in a tricky spot for many folks. One of these days we’ll figure out a good place to move it to, for now it’s in the “least worst” spot so we take any reports with a grain of salt…)Report

    • PD Shaw in reply to Richard Hershberger says:

      Yeah, but to be clear prospective client communications are covered by the attorney-client privilege as well, even if the attorney is not ultimately employed for whatever reason. The non-retention letter clarifies that the attorney is not going to file a lawsuit, so the attorney isn’t sued when the statute of limitations have passed.Report

  2. I’m going to go with the theory here that Cohen-faced with the question in court-told the answer that we need to believe more so than Hannity-faced with the question in public-who is still triangulating how to answer it. Feels like he painted himself into a corner he will eventually have to admit what Cohen already has let out of the bag. Grand scheme of things we will see how important all this is, but its always entertaining watching hubris tumble down the mountain a bit.Report

    • Em Carpenter in reply to Andrew Donaldson says:

      Cohen gave the answer that either 1) he knows as an attorney is correct; or 2) was not motivated by ethical responsibility but by an attempt to protect Hannity’s dealings with him, in which case he stumbled into doing the ethical thing. Hannity’s response was just enough to appease his fans who want to say “see, he was not ACTUALLY Cohen’s client!” while specifically not waiving his privilege.Report

  3. InMD says:

    Well written and absolutely right. I find the way this is being treated in the public sphere to be… disquieting. Whatever Cohan’s shortcomings and whatever scoundrels his other clients may or may not be they don’t deserve to be collateral damage. When people consult an attorney they shouldn’t have to worry about their information being disclosed in a dragnet because of some unrelated conduct by the lawyer.Report

    • Em Carpenter in reply to InMD says:

      Disquieting is a good word for it. I’m not so concerned that he was made to name his clients, because the existence of the attorney/client relationship itself is not privileged. I have faith in the professionals at DOJ to appropriately use their conflict team to screen out any communications that are not excepted from privilege (i.e., not a communication in furtherance of a crime). One should hope we never find out what the subject of his advice to Hannity was.Report

      • InMD in reply to Em Carpenter says:

        I have faith in the professionals at DOJ to appropriately use their conflict team to screen out any communications that are not excepted from privilege (i.e., not a communication in furtherance of a crime).

        I’m less sanguine about this. My experience with the authorities on these issues is that for as many times as they’re impressively good sometimes they’re quite bafflingly stupid. I won’t be surprised if something leaks, and if it does, it’ll be one more important right thrown into the partisan meat grinder.Report

        • Em Carpenter in reply to InMD says:

          I get that. I was a defense attorney in another life and my inclination is always to distrust the authorities. I guess I am hopeful that the spotlight on this particular ring of the circus will inspire prudence.Report

        • PD Shaw in reply to InMD says:

          I do not have a lot of confidence that career prosecutors would respect the privilege. Prosecutors have more limited confidentiality expectations than attorneys in private pracice and they are more likely to see the privilege as an obstacle to be circumvented. It’s my understanding that the Judge will either appoint a team of prosecutors or a special master (typically a retired judge) to review the documents, and Cohen is asking for the special master, which makes sense to me.Report

  4. Mr. Joe says:

    Hannity seemed to use a lot of words to implicate without explicitly saying “I am not Cohen’s client.” He wants it both ways. A quantum state of facts, where he both is and it’s not a client. He and many right taking heads have gotten quite good at creating these quantum fact sets. Immigrants are both lazy do nothings mooching off the system and taking all the jobs. Obama is a brilliant mastermind and clueless fool.Report

    • Em Carpenter in reply to Mr. Joe says:

      Yes, that was by design, no doubt. Appease his supporters so they feel reassured he isn’t a client while still protecting his privilege. But for me the test is, what duty does the lawyer have to this person? Is he/she subject to malpractice or ethical violations for breaching those duties? Cohen considering him a client is the right thing to do, regardless of Hannity’s comments. If Hannity wants to disavow his privilege, fine… but he knows better. Hence the weasel words.Report

  5. Kazzy says:

    What would constitute a waiving of privilege? Do you need to go into court or take formal steps?

    Separately, it is my understanding that a judge ordered Cohen/Cohen’s lawyer to name his clients. How come?Report

    • Nevermoor in reply to Kazzy says:

      Generally, you waive a privilege by disclosing privileged information.

      The name of clients isn’t (usually) privileged, and can be relevant to another case. I am not following that case closely enough to apply the principle.Report

    • Em Carpenter in reply to Kazzy says:

      Just saw this, sorry!
      The existence of an attorney/client relationship is not privileged, in and of itself, except in very rare instances, such as if disclosure of the relationship would violate some other privilege.

      As I understand it the judge wanted to know because Cohen claimed his clients’ interests outweighed the prosecutor’s.

      Waivers generally must be knowing and voluntary. An attorney would want a very clear expression of waiver, either in writing or on the record because violating privilege can cost you your license.Report

  6. Kazzy says:

    “Is that my privilege in your pocket or are you just happy to see me?”

    Maybe therein lies the confusion.Report

  7. Zot says:

    If Cohen is in fact responsible for having a rather famous person termed a child molestor on network television…
    This does not give me more confidence in how well he is serving our POTUS.Report

  8. Doctor Jay says:

    I would like to know what the impact would be on the prosecution if the court had appointed (or does appoint) a special master to review all materials before handing them over to prosecutors. Is this just a case of “it’s slow and kind of annoying”? Or is there more to be concerned about?Report

    • Em Carpenter in reply to Doctor Jay says:

      In addition to the annoyance of delay I would have some heartburn over giving up so much control. I would worry that I and the special master may have differing opinions on what is relevant/not privileged. I suppose there could be a risk of unauthorized disclosure but I doubt someone appointed by a federal court is a big risk for that.Report

  9. Tod Kelly says:

    Great post Em. Very happy you are here!

    I do have one question that I have been wondering: I know if Hannity used Cohen for legal advice or representation he is protected by attorney/client privilege. I know if Hannity used Cohen to commit a crime he is not.

    What I don’t know is, if Hannity hired Cohen for something that was not legal advice or representation and would not be thought of by most people to be “attorney work,” but that was entirely legal, is that protected?Report

    • Em Carpenter in reply to Tod Kelly says:

      Thank you! Glad to be here.
      I think it would have to be pretty far removed from legal work. To give an exaggerated example, you can hire me to paint your house and that will not establish privilege. But anything business related would be open to interpretation and I wouldn’t bet my law license on it. Do you have a more specific example in mind?Report

  10. Alan Scott says:

    Given the nature of Cohen’s practice and the small and peculiar list of his clients, it seems like one serious possibility here is that Cohen facilitated some sort of business deal between Hannity and Trump.

    If this was a business deal that it was illegal for presidential-candidate Trump to make but not illegal for private-citizen Hannity, how does attorney-client privilege apply?Report

    • Em Carpenter in reply to Alan Scott says:

      I think that’s unlikely, because he probably could not represent them both in a deal between the two of them without there being a conflict of interest.
      If somehow that was the case, the criminality would likely defeat the privilege all around. Even if Hannity was not criminally liable, the attorney’s work was for an unlawful purpose.Report