Yes, Hannity, Cohen is in fact your lawyer. And you should be glad.
If it had been a movie, it would have been criticized for the cheap, unrealistic plot device.
In a federal courthouse in New York, as the president’s lawyer faced the judge and the country feverishly refreshed Twitter feeds for details, there was a startling detail revealed. It was another, especially juicy layer added to the ever-growing Stormy/Trump/Cohen/Mueller saga: Sean Hannity is Michael Cohen’s mysterious third client. The Twitterati laughed, scoffed, pontificated and theorized, a mixture of “I told you so” and disbelief.
Michael Cohen, the vaguely sinister clown of this three ring circus, is the attorney for Fox News star and Trump champion Sean Hannity? Really?
It depends on who you ask. Cohen clearly calls him a client, but Hannity himself downplays the relationship. The day of the pronouncement, Hannity tweeted that Cohen has never represented him on anything and that he never retained Cohen, paid him any legal fees or “received an invoice”. He claims he merely asked Cohen about “legal issues” on which he wanted Cohen’s “input” and “perspective”. He hesitates to admit flatly that Cohen is his lawyer. After all, Cohen’s reputation is that of a “fixer” for shady characters and their shady dealings, not a respected member of a white shoe law firm whom one might boast about retaining. Is Cohen simply name dropping a celebrity acquaintance as a client to inflate himself? Probably not. Even relying only on Hannity’s own words, Cohen is actually doing the correct and ethical thing in calling Hannity a client.
Lawyers have a very strict set of ethics and rules of professional responsibility to which they must adhere in their duties to their clients. Establishing an attorney/client relationship does not require a retainer, a formal agreement, or a specific request for representation. Lawyers who interact with others online go out of their way to make it clear they are not YOUR lawyer. They display disclaimers that any communications are informational only and should not be construed as legal advice, etc. This is because the request for and giving of advice alone can establish that attorney/client relationship, triggering all of the duties and obligations that come with it.
The attorney/client privilege protects communications between the lawyer and his or her client. The privilege exists to enable clients to speak freely with their attorneys without worry of consequence. This is necessary because a lawyer cannot provide informed, competent advice without knowing all of the facts. To require an attorney to violate privilege requires exceptional circumstances, such as conversations with an attorney for the purpose of committing a crime.
An attorney is responsible for knowing when he or she has stepped into the role of counsel to a particular individual. For all of his perceived shortcomings as an attorney, Cohen got this one right. In fact, Hannity tweeted that he expected his conversations with Cohen to be kept confidential — a right that only vests if there is an attorney/client relationship.
One can speculate on just what kind of issues Cohen advised Hannity about. The cynical or conspiratorial among us may theorize that Cohen’s motivations in claiming privilege are to hide criminal activity. But we don’t know that yet (nor has there been any actual scent of such wrongdoing in the air). What we do know is that when Cohen’s office was raided, he went to court to try to protect his clients, as he is obligated to do. Now, Hannity and his employer, Fox News, want to distance themselves from Cohen; Fox released a statement characterizing Hannity’s relationship with Cohen as “informal” and claimed surprise at the news.
Hannity should be grateful that Cohen is, in this instance, doing what a lawyer should do in trying to protect his privileged communications with his client. If Hannity wants to continue to disavow his legal relationship with Cohen, he does so at his own peril. The reason lawyers must be careful to recognize when a relationship has become privileged is that the client may assume it is, and thus feel free to divulge information they then expect will be confidential. If Sean Hannity wants to take the position that this is not the case, he risks depriving himself of that protection. Protecting the client is the crux of the privilege, which therefore does not exist where there is no client.
For now, it appears there is privilege here. In the end, there may be nothing about the dealings between Hannity and Cohen that makes it into the sphere of public knowledge. And if Hannity has done no wrong, at least not with Cohen’s assistance, that is exactly how it should be.