The downside of Michael Cohen’s testifying publicly

TV’s legal journalists and pundits, especially left-leaning or anti-Trump, are almost giddy at the prospect of having Michael Cohen testify publicly before congressional committees — the first scheduled for Feb. 7 — looking into the president’s conduct. The media players, better than most, recognize the potential spectacle of President TrumpDonald John TrumpTrump nominates ambassador to Turkey Trump heads to Mar-a-Lago after signing bill to avert shutdown CNN, MSNBC to air ad turned down by Fox over Nazi imagery MORE’s former lawyer recounting for the world his conversations with his illustrious client, even if those words were spoken and the actions committed long before Trump became president.

Cohen’s former lawyer, David Schwartz (does anyone remember him?) once publicly labeled Cohen as Trump’s “fixer,” Although Schwartz fell off the grid, probably for having made that comment, the public now will be able to hear the verbiage Trump used when directing Cohen to “fix” things that potentially might get in his way — talkative women, questions about tax returns, his business dealings in Russia, those intending to charge Trump with fraud.

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So, one would think, we will hear not only secret recordings that Cohen astonishingly made while “counselling” his client, we also will hear from Cohen the disturbing context that presumably made Cohen want to record Trump to protect himself. Was it that Trump wanted Cohen to cross a line that even an obsequious lawyer found too treacherous? Just imagine, Cohen once claimed that he would take a bullet for his client, even though he had taped him probably to make himself bulletproof.

Yes, this will be great TV — maybe even better than John Dean’s as-yet-unmatched testimony on Watergate 45 years ago. But Dean was different; he was the official White House lawyer, with an obligation to the nation, which most Americans understood. Cohen, on the other hand, was a private lawyer for an individual who happened to become president. And now Trump is president and Cohen will tell all, or at least a lot of, the confidences shared between lawyer and client.

It’s likely Cohen will not be asked to testify to privileged attorney-client communications. But, we assume, much of their communications had more to do with business dealings than actual legal advice, including Trump’s raising (as many clients do) potential strategies that a wise counsel would promptly reject because, well, they needed to be rejected. 

Having said that, when a client speaks to his lawyer, even when technically not seeking legal “advice,” doesn’t the client have a legitimate reason to expect that the lawyer will take that discussion and those ideas raised to his grave? True, if the client is seeking advice in order to commit a crime, he’s not entitled to confidentiality. But, one suspects, most of what Cohen will have to say doesn’t involve that kind of thing. Rather, Cohen will be giving Congress an insider’s view of how Donald Trump, private citizen, conducted himself behind his lawyer’s closed doors, and perhaps how he sought to protect himself before the eyes of the world.

Think about that, and about those who may have animated discussions with their lawyers, in which each may go to the edge to figure out a strategy. A client is entitled to believe in the sanctity of the time-honored confidentiality lawyers pledge. Will hearing Cohen tell all, amid public snickering and endless analysis, change the way clients and lawyers interact — and more directly, what a client may be willing to propose? Maybe. 

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Perhaps many of Trump’s conversations with Cohen weren’t privileged. But isn’t the fear that people will see in Cohen a lawyer maybe not so different from their own (except, of course, that Cohen now has been convicted and disbarred)? Many people won’t see that the Cohen-Trump situation is extremely unique, that Cohen was caught with his fingers in the cookie jar and deflated by Trump and, as a result, was willing to talk about the president, including when they previously interacted in a possibly criminal way. To be clear, Cohen is talking about client conversations solely because it fits his personal needs to do so. 

The attorney-client privilege and ethics rules for lawyers that demand confidentiality were created for a good reason: to encourage clients to be completely forthcoming when they seek legal advice, without fear that others might learn their secrets, strategies and more. I’m not sure that the impending spectacle of Cohen’s testimony will be in the public interest if, in the end, it discourages clients from speaking freely to their lawyers. When clients see a disgruntled lawyer, as Cohen is now, getting into the nitty gritty about, say, Trump’s curse-filled response when Cohen rejected a silly (or possibly criminal) idea, clients might wonder whether they should confide at all.

Clients have a right to expect confidentiality even if — and perhaps more so — the idea proposed is stupid or borderline criminal, assuming the client abides by his lawyer’s rejection of the idea. Don’t we want clients coming to their lawyers, rather than keeping their problematic ideas to themselves and thus creating a better chance that the client will act on them?

I hope the Cohen testimony does not encourage clients to forego legal counsel. We all know what they say about someone who represents himself.

Joel Cohen, a former state and federal prosecutor, practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. Cohen is an adjunct professor at Fordham Law School. He regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications, and is the author of “Broken Scales: Reflections on Injustice.” He is not related to Michael Cohen.