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.

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.