Wednesday, July 25, 2018

Did Cohen’s Release of the Tape Breach Ethical Rules?


In a new development re my last post, on 7/24/18 Michael Cohen make public what appears to be a recording of an in-person conference with Donald Trump, which conference took place shortly before the 2016 election. It seems fair to say that some of the content of this conference involved things that the client would have wanted to remain secret. If Trump had already released any part of the attorney-client privileged content of the conversation, then the privilege was gone. (You cannot pick and choose, revealing those parts of an attorney-client conference that ore favorable, withholding the damaging parts.) Cohen could not then be faulted under the attorney-client privilege branch of his ethical obligation. However, unless Trump had already caused the release of the entire content of the conversation, privileged or not, then Cohen was still ethically obliged not to disclose any secrets of the client that were still secret.

Of course, breaches of his duties under New York’s code of legal ethics may be pretty low on the list of Cohen’s problems. This release may also be pretty low on the list of ways Cohen will be a problem for Trump.

Sunday, July 22, 2018

Ethics Inquiry for Leak of Cohen-Trump Playboy Bunny Tape?


Someone apparently leaked the tape in which Trump and Cohen discussed the possibility of reimbursing A.M.I. (parent company of National Enquirer) for its pre-election capture and kill of Karen McDougal’s story of her year-long affair with the  parent of the then infant Barron Trump.

If the tape was attorney-client privileged, or even a client secret, then it would violate ethics for Cohen to leak it. It would, similarly, be a breach for Giuliani or any of Trump’s other lawyers to leak it without Trump’s consent.  

So, either Trump leaked this himself, or someone violated the lawyers’ code of ethics.  Trump should be asked. If he denies directing the leak himself, then an ethics investigation would be appropriate. Of course, it is conceivable that the investigation would turn up that there was no lawyerly breach, Trump having lied on the point.   

Wednesday, July 18, 2018

Was Jesus a Pacifist: The First Generation of Followers and the Sword at Gethsemane


For 1700 years or so it has been the majority view among Christians that Jesus was no pacifist. This is hardly surprising given the number of wars fought, directed, and instigated by sincere, doctrinally orthodox, Christians. History would make no sense, and neither would the political commitments of most contemporary Christians, if Jesus were a pacifist. 

Yet there is some reasonably strong textual support in the gospels for the proposition that pacifism of some variety was part of Jesus’s message: “But I say unto you, That ye resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also.” (Matthew 5:39. Nearly the same: Luke 6:29.) “[F]or all they that take the sword shall perish with the sword.” (Matthew 26:52).

The exegetical enterprise bent on demonstrating that these passages do not mean what they say has been determined and well credentialed. Sometimes it is a little crude, but sometimes it displays strong scholarship and not implausible arguments. Still, I think the tradition has been somewhat more confident than is warranted in its conclusion that Jesus was no pacifist. 

Thursday, July 5, 2018

Once More The Crime-Fraud Exception Before and After the Crime

In my last post I argued that the crime-fraud exception to attorney-client privilege is really a very different thing when it  is cited to by police or prosecutors before the crime has been committed from when it is resorted to in post-crime litigation. It follows that the elements of the exception should be different in the two different settings – if there should be a post-crime exception at all.

A particular case, suggested but not developed in that post, dramatizes the point: 

Monday, July 2, 2018

Crime-Fraud Exception: Stopping Crime and Prosecuting Crime

In my post “Trump, Cohen and the Crime-Fraud Exception to Attorney-Client Privilege,” 4/13/18, I opined that a lawyer’s informing her client that intended conduct was criminal could fall under the crime-fraud exception. I was mostly wrong as to the way the law is. As to the way the law of this privilege should be, it’s more complicated. 

The crime-fraud exception serves two purposes. The compelling purpose is the prevention of crime. The less compelling purpose is to get hold of a lawyer’s most confidential papers to convict her client.

My thesis here is that the pre-crime and post-crime crime-fraud exceptions should have very different rules – if there must be a post-crime exception at all.