Michael Cohen would tape conversations with clients in lieu of taking notes, his own lawyer, Lanny Davis, told The Washington Post. The September 2016 recording of Cohen and his then-client Donald Trump attests to this practice, Davis said.
But that recording — made during the presidential campaign — has also raised questions about the code of legal ethics, among other things.
The president lashed out about the tape and Cohen on Wednesday.
So can lawyers do this?
Was it legal for Cohen to record his conversations with Trump?
Cohen and Trump were both in New York when the recording was created on Cohen's cellphone, Davis confirmed to The Post.
In New York, a one-party consent state, it is legal to record another person without his or her knowledge, so long as the individual is also in a one-party consent state.
Was it ethical?
This answer is less clear cut.
The rules of professional responsibility and legal ethics hinge on whether a lawyer acted deceptively or dishonestly, two fairly ambiguous descriptors.
“The traditional view was that any secret tape recording was deceitful,” said Bruce Green, professor at Fordham University School of Law. Over time, though, social expectations shifted. As people became more accustomed to being recorded, the American Bar Association backed away from that position.
The ABA, whose standards are often models for state laws, wrote an opinion — published in 2001 — that said secret tape recordings of third parties were not ordinarily deceptive. However, the ABA ethics committee was divided on whether it violated legal ethics to secretly record a client.
“The general weighted opinion is that an attorney must have a justifiable reason, assuming he’s in a state that allows it,” said Green, adding that there’s rarely a good reason to record a client.
The answer is furthered muddled in New York, where Cohen was practicing law in 2016. The state has more than 20 bar associations that are not in 100 percent agreement with one another. Some, like the New York City Bar Association, say that “undisclosed taping as a routine practice is ethically impermissible” and absent an exception, lawyers may not do it. Yet other New York associations are accepting of the same practice.
“Recording clients is definitely unusual and almost always a really bad idea,” said Rebecca Roiphe, professor at New York Law School. “But it’s not necessarily a clear ethical violation, depending on the circumstances.”
What circumstances would justify recording a client? Does ‘general practice’ qualify?
Ellen Yaroshefsky, executive director of the Monroe H. Freedman Institute for the Study of Legal Ethics and a member of the New York City Bar Association’s Ethics Committee, suggested a few scenarios:
If a lawyer believed the client was engaging in illegal conduct; suspected the client was attempting to use the lawyer to commit a crime or as a scapegoat; or intended to include the client’s words in a complaint or legal filing.
According to Davis, Cohen had a longtime habit of using his telephone as an alternative to note-taking.
“It was such a familiar practice, he often forgot to tell the person he was talking to that he had the phone on because he never intended to ever make use of it and there was no deceptive intent,” Davis said.
To his point, many recordings were seized by the federal government in April during a search warrant.
One might argue that recording clients, as a general practice, is bad lawyering, but, according to Roiphe, it seems less likely to run into ethical problems. “It’s not as deceptive and more probable to be known by the client,” since it's not a one-time thing, done for a particular meeting.
Could Cohen be disbarred for the recordings?
On Tuesday, Trump attorney Rudolph W. Giuliani told Fox News that Cohen was a “pariah” to the legal profession and had released only an excerpt of the tape. Then he predicted Cohen would be disbarred.
But experts agreed, unanimously, that that was an unlikely outcome, though the future could uncover other ethical or criminal violations.
Although failing to tell a client about a recording device certainly doesn’t engender trust, which is the hallmark of attorney-client relationships, in New York, no rule says a lawyer must.