Michael Cohen would engage in discussions with customers rather than take notes, his own lawyer Lanny Davis told the Washington Post. The recording of Cohen and his then client Donald Trump, taken in September 2016, testifies to this practice, Davis said.
But this record – made during the presidential campaign – raised questions, among other things, about the Code of Legal Ethics. 19659008] The president struck on Wednesday about the band and Cohen.
Can lawyers do that?
Was it legal that Cohen recorded his talks with Trump?
Cohen and Trump were both in New York when the recording on Cohen's cell phone was made, Davis confirmed to The Post.
In New York, a one-party consent state, it is legal to take on another person without his or her knowledge, as long as the individual is also in a one-party consensus state.
Was it ethical?
This answer is less clear.
The rules of professional responsibility and legal ethics depend on whether a lawyer acted deceptively or dishonestly, two rather ambiguous descriptors.
"The traditional view was that any secret tape recording was fraudulent," said Bruce Green, a professor at Fordham University School of Law. Over time, however, social expectations changed. As people got used to being recorded, the American Bar Association withdrew from that position.
The ABA, whose standards are often models for state law, drafted a statement published in 2001 that contained secret tape recordings of third parties were usually not deceptive. However, the ABA Ethics Committee was divided on whether it violated the legal ethic of secretly registering a client.
"The general weighted opinion is that a lawyer must have a legitimate reason, provided he is in a state that allows it," Green said, adding that there is seldom a good reason to accept a client.
The answer is confused in New York, where Cohen practiced law in 2016. The state has more than 20 bar associations that do not fully agree with one another. Some, such as the New York Bar Association, say that "undisclosed taping as a routine exercise is ethically inadmissible" and that, with one exception, it is not possible for lawyers to do so. But other New York associations accept the same practice.
"Taking in clients is definitely unusual and almost always a really bad idea," said Rebecca Roiphe, a professor at New York Law School. "But it's not necessarily a clear ethical violation, depending on the circumstances."
What circumstances would justify the inclusion of a client? Is "general practice" suitable?
Ellen Yaroshefsky, Executive Director of the Monroe H. Freedman Institute for the Study of Legal Ethics and a member of the New York Bar Association's Ethics Committee, suggested some scenarios:
If a lawyer believed that the client was acting illegally; suspected that the client was trying to use the lawyer for a crime or as a scapegoat; or to include the words of the client in a complaint or legal request.
After Davis, Cohen had a long habit of using his phone as an alternative to the notes.
"It was such a familiar practice, he often forgot to tell the person he was talking to that he had the phone because he had never intended to use it, and there was no deceptive intention "Davis said.
Until that time, many shots were taken by the federal agency in April during a search warrant.
It might be argued that recording clients as a general practice is a bad law, but according to Roiphe it seems less likely that there will be ethical issues. "It is not so misleading and more likely that the customer knows it," since it is not a one-time event for a particular meeting.
Could Cohen be banned for the recordings?
On Tuesday, Trump lawyer Rudolph W. Giuliani told Fox News that Cohen was a "pariah" of the legal profession and had just published a section of the book. Then he prophesied that Cohen was excluded.
But the experts unanimously agreed that this was an unlikely outcome, although the future could reveal further ethical or criminal violations.
"Although there is no such thing as telling a client about a recording device," Trust does not create that is the hallmark of solicitor-client relationships; in New York, there is no rule, says a lawyer. "
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