Cohen’s Forced Client Disclosure

Look, I enjoy a little schadenfreude as much (if not more so) than the next guy. And it’s especially delicious when it comes at the expense of the cabal of crooks, clowns, and lickspittles currently running our democracy into the ground.

And yet. While I was delighted and amused to hear that Sean Hannity – the bombastic Trumpian water-carrier headlining State TV Fox News – was Michael Cohen’s mystery third client, something about it feels . . . off.

My friends at Davis Wright Tremaine have been justifiably crowing about their partner Rob Balin’s rising from the gallery and convincing the judge that the First Amendment interest in free speech and open trials demanded disclosure of the client’s name.

But did it? Was that REALLY the right call?

I have repeatedly taken the RPCs and authors of Bar ethics opinions to task for failing to respect the First Amendment when it comes to lawyer speech regulation. This includes, most recently, ABA Opinion 480, which interprets Rule 1.6 far beyond its constitutional limitations. But this doesn’t mean the First Amendment always trumps the obligations lawyers have to their clients – or to the protections of the attorney-client relationship built into the Rules.

Cohen did the right thing – really, the only thing he could do – in seeking consent from his clients to disclose their identifies, and resisting the efforts at disclosure when Hannity did not give such consent.

And Balin certainly did the right thing, too, in pressing his argument for openness and disclosure.

But what I can’t figure out is why this disclosure was necessary. The fact that a legal matter is proceeding in a courtroom does not mean that any-and-all facts relating to that proceeding are free game for disclosure. Immaterial facts, matters not relevant to the proceeding, trade secrets, etc, etc – there are numerous instances where facts are not disclosed in order to protect confidences.

So why here? As I understand it, the relative paucity of legal work (as opposed to “fixing” and “consulting”) performed by Cohen was important to the government’s argument about the appropriateness of raiding his office. But why would that require disclosing the identity of his legal clients? Why isn’t their numerosity (or lack thereof) sufficient? Particularly when – knowing what we do about the type of legal work he did for his other two clients – there are significant reputational harms coming from a client being linked to Cohen?

Don’t get me wrong: I think it’s hilarious that Hannity was revealed to be the third client. And this disclosure has turned out to be hugely interesting to the public, implicating as it does questions of journalistic ethics and the relationships between Trumpworld and Foxlandia.

But Judge Wood didn’t know that going in. And the real question wasn’t whether the identity of the client would be interesting, but whether that identity was relevant to the proceeding. It doesn’t seem like it was.

I may be missing some important nuance here; I wasn’t there in the courtroom to hear the arguments. But it’s deceptively easy to just go with the outcome you like. With norms and institutions under attack as they are these days, it’s never been more critical to respect and defend the rule of law.

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