Why did the Federal judge make Cohen name his clients in open court?

[Muffin]

How very appropriate if a judge who decided to not become a playboy bunny is the one who opened the evidentiary trapdoor to Trump’s fall.

[Tired_and_Cranky]

@friedo

There’s no confidentiality issue because the fact that you have an attorney-client relationship is itself not privileged information. So the judge was ordering Cohen’s lawyers to disclose perfectly ordinary information which did not have any need for secrecy. US courts are very reluctant to do things in camera unless absolutely necessary to protect an ongoing investigation, protect confidentiality, protect national security, or some other compelling reason. There was no such reason here, and the judge was correct to assume that the only reason they were trying the envelope gambit was to avoid the media shitstorm they knew it would be. Which they wouldn’t have avoided anyway, because if the judge had accepted the envelope, she probably would have just read the contents right into the record. The whole thing was pointless.

It’s not so unequivocal. There are times when U.S. courts will treat the identity of a lawyer’s client as privileged information. I don’t feel like doing original research on the issue and I won’t comment on the status of the law in New York with particularity but here is a mediocre discussion with some cites for when courts will protect a client’s identity as privileged information.

Court Limits Attorney–Client Privilege for Client Identities - Presnell on...

@Northern_Piper

Interesting. It would be considered confidential in Canada. Difference in the systems, I guess.

The professional duty of confidentiality is broader than the solicitor-client duty, and I would think a Canadian court would protect it as well.

I don’t think the systems are that different after all but I won’t pretend to be an authority.

I suspect the court required disclosure because the general rule is that the client’s identity is not privileged, timely objection to publicly disclosing the information should have been before the information was due to the court, and (perhaps) Cohen’s failure to raise any valid grounds upon which to find that his clients’ identities should be privileged. The burden for showing that the information should be privileged falls on the attorney.

Based on Dr. Strangelove’s account, it seems the court was initially willing to conceal the clients’ identities but the NYTimes/CNN attorney intervened and convinced her otherwise.

[Chronos]

I suspect that most judges decide not to become Playboy bunnies. I’ve never heard of any who have.

[Gyrate]

@Chronos

I suspect that most judges decide not to become Playboy bunnies. I’ve never heard of any who have.

Well there **were **those rumors about Thurgood Marshall…

[Kelevra]

@Chronos

The taint team…

You really need a better team name…

[Ludovic]

@Gyrate

Well there **were **those rumors about Thurgood Marshall…

Not to mention the late Earl Warren.

[Napier]

@friedo

How does that even work in practice? How can someone represent you if you can’t even be made to confirm that “this guy works for me?”

A lawyer can work for a client without representing them in a visible proceeding, and there can be good innocent reasons to keep the mere fact of a client relationship secret. For example, you may not want to effectively announce to your spouse that you are talking to a divorce lawyer, or a financial advisor may not want their clients to hear that they are consulting a bankruptcy lawyer (this example quoted from Morning Joe this morning). And these examples might not be about a divorce or bankruptcy for the client themselves, just one in which they may have some involvement.

[AK84]

@Czarcasm

If Hannity claims that he is not a client, then there is no attorney-client privilege and the lawyer can be made to tell everything he did for Hannity.

No. If Hannity asked for legal advice for actual or contemplated litigation or transaction then privilege attaches, even if he never returned or paid, or expected to pay.

[Northern_Piper]

“Client” is an ambiguous term. Many people think it means someone who pays for services. That’s certainly one meaning.

However, in the context of the phrase “attorney-client privilege”, “client” means a person who has sought and been given legal advice by a lawyer. There doesn’t have to be a formal retainer or any payment of money. It’s the fact that the person sought legal advice and the lawyer gave it that established the lawyer-client relationship, triggering all of the professional obligations for the lawyer that attach to that relationship, and also giving the client the benefit of lawyer-client privilege.

The act of giving legal advice is the heart of the professional duties of a lawyer.

[iamthewalrus_3]

@Oakminster

I find it interesting that Hannity denies being a client. I’ve been in situations where a non-client claimed I represented them, but never the reverse…

Might change if you ever get raided by the FBI…

[SmartAlecCat]

@Northern_Piper

Did the judge explain why she insisted he disclose them openly?

She repeatedly asked if there was a legal reason the name shouldn’t be disclosed. Cohen’s legal team couldn’t think of any good reason.

[Shodan]

I assume the compelling legal reason **for **disclosing it was not “because the New York Times wants to know”.

Is that the legal default - if an attorney is under indictment, and a newspaper asks, the judge will disclose the complete list of everyone the attorney has ever worked for? Unless he can come up with a compelling reason not to?

I can see the rationale of giving the list to those investigating, so they know whose records are whose and therefore aren’t relevant to the case, but why disclose it in open court? What makes this the public’s business?

Regards,
Shodan

[Max_Torque]

@SmartAlecCat

She repeatedly asked if there was a legal reason the name shouldn’t be disclosed. Cohen’s legal team couldn’t think of any good reason.

Nailed it. Judges are very well aware of the public’s interest in courtroom proceedings, and they won’t make anything secret absent a compelling reason to do so, such as, “My client might be murdered if his name is mentioned.” “My client doesn’t want his name to come out,” by comparison, is not a compelling reason.

Edit:

@Shodan

I assume the compelling legal reason **for **disclosing it was not “because the New York Times wants to know”.

Is that the legal default - if an attorney is under indictment, and a newspaper asks, the judge will disclose the complete list of everyone the attorney has ever worked for? Unless he can come up with a compelling reason not to?

I can see the rationale of giving the list to those investigating, so they know whose records are whose and therefore aren’t relevant to the case, but why disclose it in open court? What makes this the public’s business?

Regards,
Shodan

Courtroom proceedings are always the public’s business. Judges have gotten in trouble in the past for as little as shutting the courtroom doors when there was no more room inside. In other words, openness is the default, and there has to be a really good reason to keep something concealed.

[Acsenray]

@Northern_Piper

Because the professional duty of confidentiality is broader than the solicitor-client privilege. Privilege is an evidential rule in court: privileged material can’t be disclosed.

The duty of confidentiality is broader and potentially includes even the fact of acting for someone. A person may consult a lawyer for legal advice without wanting to go to court.

For instance, they may be in a contractual relationship and are wondering if the conduct of the other party means the contract is broken and they’re no longer bound by it.

Just the fact of them consulting a lawyer could harm their relationship with the other party to the contract, if it becomes public knowledge. So they might say to the lawyer, “thanks for the advice about my legal obligations, but please keep it confidential that I consulted you.”

Then if the media phones me and says “We’ve heard you act for So-and-so,” my response is “I cannot comment on whether So-and-so is a client.”

It changes if So-and-so has given me instructions that require me to disclose I’m acting for them, like starting a law suit.

Suppose I advise that I think the other party to the contract has breached it and my client has an action for damages, and the client instructs me to start a court action. Then, I’m solicitor of record for So-and-so, and the fact that the person is my client is no longer confidential.

The duty of confidentiality depends on the instructions from the client.

Yes our systems must be very different then, because we are taught from Day 1 of privileges in law school that the fact of whether there exists an attorney-client relationship is not covered by the privilege and a lawyer’s client list is not privileged.

But of course the privilege applies to the question of what a court can compel you to reveal. That doesn’t mean that you have to tell any old joker who calls you up on the phone who Your clients are.

[Tired_and_Cranky]

@Shodan

I assume the compelling legal reason **for **disclosing it was not “because the New York Times wants to know”.

Is that the legal default - if an attorney is under indictment, and a newspaper asks, the judge will disclose the complete list of everyone the attorney has ever worked for? Unless he can come up with a compelling reason not to?

I can see the rationale of giving the list to those investigating, so they know whose records are whose and therefore aren’t relevant to the case, but why disclose it in open court? What makes this the public’s business?

There are two legal “defaults” at issue. First, the default is that the identity of a lawyer’s clients is generally not privileged. If Cohen couldn’t present a good reason for his client’s name to be privileged in this case, he can’t use privilege as an excuse to not tell the court who his client is.

Second, public criminal court proceedings help to protect the public and press’s ability to oversee the administration of justice. Accordingly, the “default” is that evidence presented in criminal proceedings should be public. In most cases, the names of a lawyer’s other clients is irrelevant and thus aren’t evidence in the proceeding. In this case, the identity of all of Cohen’s clients is relevant because, as you note, the parties reviewing the documents need to know whether communications with Cohen might be privileged. So, the default is to make that information available to the public. Although I haven’t read the transcript, I suspect that the NY Times and CNN asking that the information remain public helped to persuade the judge that making the information public was the right thing to do – especially if Cohen failed to persuasively argue why the name should remain private.

In this case, the wisdom of Judge Wood’s opinion was revealed when we learned that the client was Hannity. We now have reason to question whether Hannity’s coverage of the Cohen is unduly flattering due to their special relationship.

[Procrustus]

@Shodan

I assume the compelling legal reason **for **disclosing it was not “because the New York Times wants to know”.

Is that the legal default - if an attorney is under indictment, and a newspaper asks, the judge will disclose the complete list of everyone the attorney has ever worked for? Unless he can come up with a compelling reason not to?

I can see the rationale of giving the list to those investigating, so they know whose records are whose and therefore aren’t relevant to the case, but why disclose it in open court? What makes this the public’s business?

Regards,
Shodan

It’s as American as Apple Pie. There is a presumption that all judicial proceedings are public. * Estes v. State of Tex*., 381 U.S. 532, 542 (1965).

Kenneth Kamakana v. City and County of Honolulu
US Court of Appeals for the Ninth Circuit - 447 F.3d 1172 (9th Cir. 2006)

Historically, courts have recognized a “general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 & n. 7, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978). This right is justified by the interest of citizens in “keep [ing] a watchful eye on the workings of public agencies.” Id. at 598, 98 S. Ct. 1306. Such vigilance is aided by the efforts of newspapers to “publish information concerning the operation of government.” Id.

Jessup v. Luther, 277 F. 3d 926 (2nd Cir. 2002) (internal citations omitted)

The general rule is that the record of a judicial proceeding is public. Not only do such records often concern issues in which the public has an interest, in which event concealing the records disserves the values protected by the free-speech and free-press clauses of the First Amendment, but also the public cannot monitor judicial performance adequately if the records of judicial proceedings are secret.

[Shodan]

@Tired_and_Cranky

Second, public criminal court proceedings help to protect the public and press’s ability to oversee the administration of justice. Accordingly, the “default” is that evidence presented in criminal proceedings should be public. In most cases, the names of a lawyer’s other clients is irrelevant and thus aren’t evidence in the proceeding. In this case, the identity of all of Cohen’s clients is relevant because, as you note, the parties reviewing the documents need to know whether communications with Cohen might be privileged. So, the default is to make that information available to the public.

[list=A][li]I don’t see how this is evidence - AFAIK Hannity has not been charged with any crime.[*]I understand why the parties reviewing the documents would need to know the names of Cohen’s other clients. Why does the public need to know? It’s not evidence.[/list][/li][quote]

In this case, the wisdom of Judge Wood’s opinion was revealed when we learned that the client was Hannity. We now have reason to question whether Hannity’s coverage of the Cohen is unduly flattering due to their special relationship.
[/QUOTE]
What business of the judge’s is it how Hannity covered anything? What does that have to do with the charges against Cohen?

Regards,
Shodan

[Tired_and_Cranky]

@Acsenray

Yes our systems must be very different then, because we are taught from Day 1 of privileges in law school that the fact of whether there exists an attorney-client relationship is not covered by the privilege and a lawyer’s client list is not privileged.

But of course the privilege applies to the question of what a court can compel you to reveal. That doesn’t mean that you have to tell any old joker who calls you up on the phone who Your clients are.

Okay, I did some original research because I know that the identity of a client may be privileged in some cases. New York in particular has a number of cases where the privilege has been recognized. There are a few federal cases on point as well.

In Re Kaplan, 8 NY2d 214, 203 NYS2d 836, 168 NE2d 660 (1960) held that a lawyer retained to confidentially pass information about public corruption to investigators was not in contempt of court for refusing to identify his client.

Most notably relevant to the Cohen case, Allen v West Point-Pepperell, 848 F Supp 423 (1994, SDNY) held that:

While defendants correctly point out that the identity and address of a client are not generally held to be confidential communications and, thus, not privileged, see Matter of Jacqueline F., 47 N.Y.2d 215, 391 N.E.2d 967, 970, 417 N.Y.S.2d 884, 887; In re Shargel, 742 F.2d 61, 62 (2d Cir.1984), “the rule in New York is not so broad as to state categorically that the privilege never attaches to a client’s identity”; Matter of Jacqueline F., 47 N.Y.2d 215, 391 N.E.2d 967, 417 N.Y.S.2d 884, 887 (1979) (citing Matter of Kaplan, 8 N.Y.2d 214, 168 N.E.2d 660, 203 N.Y.S.2d 836, 838-39 (1960)) (refusing to hold lawyer in contempt for failure to disclose name of client because of client’s justified fear of reprisals). The Court in Matter of Jacqueline F., moreover, indicated that absent other compelling circumstances, a client’s identity need not be disclosed where the client is not a party to the pending litigation. 417 N.Y.S.2d at 887. Defendants here have not made a showing of the need for disclosure of the names of Mr. Krumme’s *432 other clients sufficient to overcome the legitimate fear of retaliation harbored by those clients. (emphasis added)

In Cohen’s case, Hannity is not a party to the proceedings and Hannity specifically requested that his identity be kept confidential. Cohen also was not representing Hannity in any proceedings or acting as Hannity’s attorney in Hannity’s dealings with others. Did the government in this case make a clear showing of the need for public disclosure of the names of Cohen’s other client?

[Tired_and_Cranky]

[quote=“Shodan, post:37, topic:812552”]

[list=A][li]I don’t see how this is evidence - AFAIK Hannity has not been charged with any crime.I understand why the parties reviewing the documents would need to know the names of Cohen’s other clients. Why does the public need to know? It’s not evidence.[/list]What business of the judge’s is it how Hannity covered anything? What does that have to do with the charges against Cohen?[/li][/QUOTE]

There’s a weird quoting issue in your post that I don’t want to correct but:

Hannity’s name is evidence of whether Cohen’s communications with Hannity are privileged. The general rule is that evidence in criminal trials are public. Procrustus has cited cases discussing why. Furthermore, the public’s interest in monitoring the operation of the courts should be self-evident. Can you explain why the evidence shouldn’t be public? Cohen’s attorneys apparently couldn’t, so now the information is public.

Courts shouldn’t be a venue that specially protects the wealthy and powerful like Hannity.

I never suggested it was “the business of the judge’s how Hannity covered anything.” As a person who lives in a world where voters’ viewpoints are shaped by nakedly partisan, self-interested news coverage tainted by undisclosed bias and conflicts of interest, I consider it my business. I’m glad the information was revealed.

[Northern_Piper]

@Acsenray

Yes our systems must be very different then, because we are taught from Day 1 of privileges in law school that the fact of whether there exists an attorney-client relationship is not covered by the privilege and a lawyer’s client list is not privileged.

…

But of course the privilege applies to the question of what a court can compel you to reveal. That doesn’t mean that you have to tell any old joker who calls you up on the phone who Your clients are.

I’m not saying it’s privileged in our system. I’m saying it’s subject to the professional duty of confidentiality. Privilege is an evidential rule; confidentiality is a rule of professional conduct.

That doesn’t mean the names are inadmissible, but I would think a judge in our system would be sympathetic to arguments that they should respect confidentiality for clients who have nothing to do with the case.