The (many) indictments of Donald Trump

#17,377
#17,377
RockyTop85 said:
The rules contain many of the same features but differ on a lot, too. That’s why most of the things you’re talking about are not in the Tennessee rules.

1. There is no ethical rule against recording clients in Tennessee. I haven’t checked AG opinions, it’s possible it’s deemed flatly unethical by the AG, which isn’t binding but is generally a good indication of how a disciplinary hearing would go.
Is It Ethical for Attorneys to Record Telephone Conversations? | UIC Law Review | University of Illinois Chicago

The Cohen/Trump saga spawned law review articles and the answer to the question is not cut and dry.

Ultimately, like almost anything that is not expressly prohibited, it probably depends on whether it violates another rule, which means your reasons, how you go
about it, and whose interests you’re serving are relevant. I just don’t see a meaningful distinction between recording a client and sending a letter detailing a conversation in which the client solicited assistance with a criminal enterprise or fraud and you told them no to create a written record of your refusal, which is a pretty common practice.

I still vehemently reject the idea that the possibility of inadvertent disclosure as a consideration in determining whether to create and retain any record. Anything could “leak.” The duty to make sure they don’t leak is an entirely different legal obligation.

2. There is also no professional rule mandating withdrawal of representation if your client discloses intent to commit a crime, in Tennessee. Even if the attorney’s services are used to perpetrate the crime or fraud, withdrawal is permissive (may), not required (shall). See Tenn. R. Sup. Ct. Rule 8 section 1.16(b).

1.16(a) mandates withdrawal when the representation would result in violation of the law, but that doesn’t result from simply knowing the client intends to commit a crime.
See comment 2 and 7 to rule 1.16:



E.g. client says “I’m going to go straight home and hot rail some meth,” attorney responds “I advise against that. Possession of Methamphetamine is a Class A misdemeanor and as a class II controlled substance, possession of methamphetamine for resale is a B felony punishable by up to 30 years in prison, depending on sentencing factors.” Attorney hasn’t done anything to facilitate or act as an accomplice to any crime and has no duty to withdraw in Tennessee. One can imagine a similar conversation about perjury where the attorney would have an obligation to withdraw under 1.16(a) because the conduct would violate the duty of candor to the tribunal.
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You are missing the point on the recording.

The very recording opens the door to risk for "inadequate counsel". Recordings are evidence of discussions that if leaked, can be used against your client in court. It has risks to eliminate Attorney-Client privilege rules.

Also, point #2 which you did not even address is that if you do the recording without notifying the client, it violates privacy laws. Effectively meaning you committed a crime which will would put your professional licenses in trouble in all districts.

I don't think you are seeing those points and the issues around them.


Going off #2, I used Felony in my OP because I had a brain fart. When I was thinking felony, I was consider murder, rape, or serious stuff but felonies are pretty broad even on drug abuse, etc. However, any serious felony such as theft, perjury, homicide, assault, rape, kidnapping, terrorism, etc... you are required to stop being their attorney. You are required to stop being their attorney for any of those actions.

It was a brain fart as felonies are pretty broad. I meant very serious crime in my mind but mistyped.

Even white collar crimes could be possibly problematic by association.
 
#17,380
#17,380
RockyTop85 said:
The rules contain many of the same features but differ on a lot, too. That’s why most of the things you’re talking about are not in the Tennessee rules.

1. There is no ethical rule against recording clients in Tennessee. I haven’t checked AG opinions, it’s possible it’s deemed flatly unethical by the AG, which isn’t binding but is generally a good indication of how a disciplinary hearing would go.
Is It Ethical for Attorneys to Record Telephone Conversations? | UIC Law Review | University of Illinois Chicago

The Cohen/Trump saga spawned law review articles and the answer to the question is not cut and dry.

Ultimately, like almost anything that is not expressly prohibited, it probably depends on whether it violates another rule, which means your reasons, how you go
about it, and whose interests you’re serving are relevant. I just don’t see a meaningful distinction between recording a client and sending a letter detailing a conversation in which the client solicited assistance with a criminal enterprise or fraud and you told them no to create a written record of your refusal, which is a pretty common practice.

I still vehemently reject the idea that the possibility of inadvertent disclosure as a consideration in determining whether to create and retain any record. Anything could “leak.” The duty to make sure they don’t leak is an entirely different legal obligation.

2. There is also no professional rule mandating withdrawal of representation if your client discloses intent to commit a crime, in Tennessee. Even if the attorney’s services are used to perpetrate the crime or fraud, withdrawal is permissive (may), not required (shall). See Tenn. R. Sup. Ct. Rule 8 section 1.16(b).

1.16(a) mandates withdrawal when the representation would result in violation of the law, but that doesn’t result from simply knowing the client intends to commit a crime.
See comment 2 and 7 to rule 1.16:



E.g. client says “I’m going to go straight home and hot rail some meth,” attorney responds “I advise against that. Possession of Methamphetamine is a Class A misdemeanor and as a class II controlled substance, possession of methamphetamine for resale is a B felony punishable by up to 30 years in prison, depending on sentencing factors.” Attorney hasn’t done anything to facilitate or act as an accomplice to any crime and has no duty to withdraw in Tennessee. One can imagine a similar conversation about perjury where the attorney would have an obligation to withdraw under 1.16(a) because the conduct would violate the duty of candor to the tribunal.
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Interesting, in Florida if I become aware that a client is going to commit a crime - I must break privilege to the extent necessary to prevent the crime.

(a)Consent Required to Reveal Information. A lawyer must not reveal information relating to a client's representation except as stated in subdivisions (b), (c), and (d), unless the client gives informed consent.

(b)When Lawyer Must Reveal Information. A lawyer must reveal confidential information to the extent the lawyer reasonably believes necessary to:(1) prevent a client from committing a crime; or(2) prevent a death or substantial bodily harm.

(c)When Lawyer May Reveal Information. A lawyer may reveal confidential information to the extent the lawyer reasonably believes necessary to:(1) serve the client's interest unless it is information the client specifically requires not to be disclosed;
 
#17,382
#17,382
ClearwaterVol said:
Interesting, in Florida if I become aware that a client is going to commit a crime - I must break privilege to the extent necessary to prevent the crime.

(a)Consent Required to Reveal Information. A lawyer must not reveal information relating to a client's representation except as stated in subdivisions (b), (c), and (d), unless the client gives informed consent.

(b)When Lawyer Must Reveal Information. A lawyer must reveal confidential information to the extent the lawyer reasonably believes necessary to:(1) prevent a client from committing a crime; or(2) prevent a death or substantial bodily harm.

(c)When Lawyer May Reveal Information. A lawyer may reveal confidential information to the extent the lawyer reasonably believes necessary to:(1) serve the client's interest unless it is information the client specifically requires not to be disclosed;
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I vaguely recall that a lot of states draw the lines for prohibited/permitted/required in different places and that there was some shuffling in the last few decades because of some situations that were very public.

Representing criminal defendants would be even more of a pain in the ass under that Florida rule. If you have a client come in who reeks of marijuana and you believe they’re impaired, and know they drove themselves, then you have to confront them about it and get them a ride home? Exhausting.

You have any thoughts on recording clients? Do you think a consent waiver in the contract would get around Florida consent law?
 
#17,383
#17,383
volbound1700 said:
You are missing the point on the recording.

The very recording opens the door to risk for "inadequate counsel". Recordings are evidence of discussions that if leaked, can be used against your client in court. It has risks to eliminate Attorney-Client privilege rules.

Also, point #2 which you did not even address is that if you do the recording without notifying the client, it violates privacy laws. Effectively meaning you committed a crime which will would put your professional licenses in trouble in all districts.

I don't think you are seeing those points and the issues around them.


Going off #2, I used Felony in my OP because I had a brain fart. When I was thinking felony, I was consider murder, rape, or serious stuff but felonies are pretty broad even on drug abuse, etc. However, any serious felony such as theft, perjury, homicide, assault, rape, kidnapping, terrorism, etc... you are required to stop being their attorney. You are required to stop being their attorney for any of those actions.

It was a brain fart as felonies are pretty broad. I meant very serious crime in my mind but mistyped.

Even white collar crimes could be possibly problematic by association.
Click to expand...


Re: privacy law. From my very first reply:
RockyTop85 said:
In some states, like Florida, it could violate the two party consent law, but I assume this is easily remedied in the retainer contract by including a clause that consents to recording of conversations at the lawyer’s discretion.
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Also half of the law review article linked in my last post discussed it pretty extensively. Those laws are state-by-state, it’s not illegal to surreptitiously record someone in every state.

The rest of this is Tennessee specific.

Re: ineffective assistance of counsel.

I’m not missing your point. It is just not a correct point for the reasons I already gave.

There are times/reasons/places that it’s probably not ethical/legal to record clients without consent and there are circumstances where it probably is. I’ve never done it. I wouldn’t make it a regular practice (surreptitiously recording people tends to piss them off and break trust) but if I had a particularly untrustworthy client that I thought was trying to entangle me in some kind of scheme, I probably wouldn’t think twice about recording our conversations. Concern over the record getting out wouldn’t play into it, because I already take steps to comply with that requirement.

Re: mandatory withdrawal.
I gave you the relevant Tennessee rules. There’s no overlaying, universal law of professional responsibility or common law of ethics. The rule says what it says. There’s no special exception for “serious” felonies.

You can substitute burglary, theft, etc. for meth in that hypothetical conversation and the result is unchanged. With assault and murder it turns on whether the death or substantial injury is “reasonably certain.” Honestly not sure the hypothetical would qualify, without something more. The perjury example relies on the inference that the perjury would involve the lawyer’s assistance, triggering the mandatory withdrawal.

Tennessee just generally gives the lawyer a lot of discretion on those decisions. Which makes sense because the lawyer is the person in the room with the client and is in the best position to judge whether it’s a sincere intent. An overly strict rule punishes the lawyer for misjudging the client’s sincerity.

What you’re saying might be true some places or there might be internal rules at a specific firm, and it is not a bad practice to withdraw when the client intends to crime, especially if they’re trying to use the attorney as an accomplice, but it’s not a universal rule without exceptions.
 
#17,384
#17,384
RockyTop85 said:
Re: privacy law. From my very first reply:

Also half of the law review article linked in my last post discussed it pretty extensively. Those laws are state-by-state, it’s not illegal to surreptitiously record someone in every state.

The rest of this is Tennessee specific.

Re: ineffective assistance of counsel.

I’m not missing your point. It is just not a correct point for the reasons I already gave.

There are times/reasons/places that it’s probably not ethical/legal to record clients without consent and there are circumstances where it probably is. I’ve never done it. I wouldn’t make it a regular practice (surreptitiously recording people tends to piss them off and break trust) but if I had a particularly untrustworthy client that I thought was trying to entangle me in some kind of scheme, I probably wouldn’t think twice about recording our conversations. Concern over the record getting out wouldn’t play into it, because I already take steps to comply with that requirement.

Re: mandatory withdrawal.
I gave you the relevant Tennessee rules. There’s no overlaying, universal law of professional responsibility or common law of ethics. The rule says what it says. There’s no special exception for “serious” felonies.

You can substitute burglary, theft, etc. for meth in that hypothetical conversation and the result is unchanged. With assault and murder it turns on whether the death or substantial injury is “reasonably certain.” Honestly not sure the hypothetical would qualify, without something more. The perjury example relies on the inference that the perjury would involve the lawyer’s assistance, triggering the mandatory withdrawal.

Tennessee just generally gives the lawyer a lot of discretion on those decisions. Which makes sense because the lawyer is the person in the room with the client and is in the best position to judge whether it’s a sincere intent. An overly strict rule punishes the lawyer for misjudging the client’s sincerity.

What you’re saying might be true some places or there might be internal rules at a specific firm, and it is not a bad practice to withdraw when the client intends to crime, especially if they’re trying to use the attorney as an accomplice, but it’s not a universal rule without exceptions.
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As stated, I think you are right about most of your posts on this forum historically, but wrong here. I worked for the Bar Association in the distant past. Recording clients (without their consent or a compelling reason) would be a major red flag for a variety of reasons. It may not be called out specifical in State Code regarding the Professional Rules but it would put you under other laws that would subject you to disciplinary actions. (It could also open you to Civil Suits for Privacy violation).

You are also wrong about the crimes as well because you could even, by certain reaches of the law, be prosecuted as an accessory depending on your actions. Even with the felonies that wouldn't implicate you, it is damaging to your reputation. (Granted, they wouldn't bat an eye at a comment by a client about using drugs or a traffic violation that is a felony, sure I agree on that).

All of these actions are a major red flag to you. You were correct on the duty to report, I acknowledge that I mistyped and was incorrect on that. You are only required to report on very specific/serious circumstances as you pointed out.

In practice, Tennessee will probably not act unless someone complains about you or it comes up in court/news anyways. So in practice, you could be right. However, if this kind of behavior gets out and gets attention, you are definitely going to have your license in question.

As a lawyer, you shouldn't even be messing around with these type of actions. Cohen definitely skirted the line and probably shouldn't be allowed to ever hold a license again.
 
#17,389
#17,389
volbound1700 said:
As stated, I think you are right about most of your posts on this forum historically, but wrong here. I worked for the Bar Association in the distant past. Recording clients (without their consent or a compelling reason) would be a major red flag for a variety of reasons. It may not be called out specifical in State Code regarding the Professional Rules but it would put you under other laws that would subject you to disciplinary actions. (It could also open you to Civil Suits for Privacy violation).

You are also wrong about the crimes as well because you could even, by certain reaches of the law, be prosecuted as an accessory depending on your actions. Even with the felonies that wouldn't implicate you, it is damaging to your reputation. (Granted, they wouldn't bat an eye at a comment by a client about using drugs or a traffic violation that is a felony, sure I agree on that).

All of these actions are a major red flag to you. You were correct on the duty to report, I acknowledge that I mistyped and was incorrect on that. You are only required to report on very specific/serious circumstances as you pointed out.

In practice, Tennessee will probably not act unless someone complains about you or it comes up in court/news anyways. So in practice, you could be right. However, if this kind of behavior gets out and gets attention, you are definitely going to have your license in question.

As a lawyer, you shouldn't even be messing around with these type of actions. Cohen definitely skirted the line and probably shouldn't be allowed to ever hold a license again.
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Tennessee lawyers are governed by a Board of Professional Responsibility. The Tennessee Bar Association, like the National Bar Association, is a club. It’s essentially a professional networking group that provides a lot of useful services for lawyers. I think there are some governing boards with oversight authority (Texas?) that are called Bar Associations, but in my experience, it’s just a club. I’m not sure what bonafides to infer from that.

However, ABA formal ethics opinion 01-422 does not say it’s always unethical to record clients: “A lawyer who electronically records a conversation without the knowledge of the other party or parties to the conversation does not necessarily violate the Model Rules. Formal Opinion 337 (1974) accordingly is withdrawn. A lawyer may not, however, record conversations in violation of the law in a jurisdiction that forbids such conduct without the consent of all parties, nor falsely represent that a conversation is not being recorded. The Committee is divided as to whether a lawyer may record a client-lawyer conversation without the knowledge of the client, but agrees that it is inadvisable to do so.”

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www.abajournal.com

In light of that and everything else, I don’t think that more needs to be said about recording clients unless there is some authority that contradicts what I’ve already said.

I’m almost at the same point on the crimes thing.

I’ve provided you with text of and links to the rules of professional responsibility in Tennessee. You’re just saying I’m wrong. Now I’m supposedly wrong because of laws of general applicability.

I agree that a lawyer who commits a crime during the course of representation could be held criminally liable. Continuing to represent a client who the lawyer knows is engaged in criminal conduct does not meet that standard, generally speaking.

And reputational harm isn’t really germane. This isn’t a discussion of best practices, it’s a discussion about prohibited practices.
 
#17,390
#17,390
RockyTop85 said:
Tennessee lawyers are governed by a Board of Professional Responsibility. The Tennessee Bar Association, like the National Bar Association, is a club. It’s essentially a professional networking group that provides a lot of useful services for lawyers. I think there are some governing boards with oversight authority (Texas?) that are called Bar Associations, but in my experience, it’s just a club. I’m not sure what bonafides to infer from that.

However, ABA formal ethics opinion 01-422 does not say it’s always unethical to record clients: “A lawyer who electronically records a conversation without the knowledge of the other party or parties to the conversation does not necessarily violate the Model Rules. Formal Opinion 337 (1974) accordingly is withdrawn. A lawyer may not, however, record conversations in violation of the law in a jurisdiction that forbids such conduct without the consent of all parties, nor falsely represent that a conversation is not being recorded. The Committee is divided as to whether a lawyer may record a client-lawyer conversation without the knowledge of the client, but agrees that it is inadvisable to do so.”

Loading…

www.abajournal.com

In light of that and everything else, I don’t think that more needs to be said about recording clients unless there is some authority that contradicts what I’ve already said.

I’m almost at the same point on the crimes thing.

I’ve provided you with text of and links to the rules of professional responsibility in Tennessee. You’re just saying I’m wrong. Now I’m supposedly wrong because of laws of general applicability.

I agree that a lawyer who commits a crime during the course of representation could be held criminally liable. Continuing to represent a client who the lawyer knows is engaged in criminal conduct does not meet that standard, generally speaking.

And reputational harm isn’t really germane. This isn’t a discussion of best practices, it’s a discussion about prohibited practices.
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Apparently you don't know Tennessee Code 39-13-603 which makes it a Class D Felony to record someone without their consent.

I stand by my comments on the recordings. It will get you disbarred for a variety of reasons if your client reports you.

You have also dodged several caselaw actions not in the code that would support my assertions on these topics.

The exceptions that you keep pointing out are in very rare instances under very specific categories and even then, some of them were hotly disputed and (as you have pointed out to be fair) have resulted in disciplinary action in certain districts. You are asserting that just because it isn't specifically in writing in the Tennessee Rules of Prof Responsibility, it is alright.

The Bar Associations are NOT governing bodies but they have unique access to the governing body and interpretation of rules. In this instance, they had a body that directly communicated with TN Board of Prof Responsibility and included judges that are fluent on the topics. Granted, my involvement was over a decade ago but I am pretty confident that things haven't changed that drastically since then.
 
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#17,393
#17,393
To the extent the debate over the rules of Professional Conduct is about Vohen having taped Trump, I reiterate that the question of whether Cohen violated bar rules is distinct from the question of whether Trump committed a crime.

Even if we assume that Cohen violated bar rules, that does not preclude Trump having committed a crime.
 
#17,394
#17,394
Andrew H. Giuliani
@AndrewHGiuliani


This could be another pivotal moment in the eyes of the jury, Blanche is attempting to show that Cohen testified on Tuesday to a specific recollection on Tuesday about a specific testimony.

Blanche: THAT WAS A LIE, WASN’T IT

Cohen: Part of it was about Stormy Daniels, the other part was about this

Blanche is pointing out that it was a 1 minute and 36 second phone call and that Cohen in that time had the opportunity to both tell Keith about the 14 year old, have the phone handed over to President Trump, and then inform him about Stormy Daniels!

Blanche: THATS NOT WHAT YOU TESTIFIED TO

====================

Andrew H. Giuliani
@AndrewHGiuliani
·
13m
In the elevator, I heard a CNN legal contributor asked, How bad was it?

His answer: “BAD!”

I can tell you that this contributor was singing Cohens praises on Monday evening!

===================


Jeff Clark
@JeffClarkUS
48m

Good grief.

When Cohen applying for supervised release:

He used AI to do legal research and just admitted to Todd Blanche AI made up three fictional cases.

Without determining whether they were real he sent them to his lawyer for use in an official filing.

This is legal negligence on steroids.

And it shows that he’s asleep to general cultural and legal news as well. Any lawyer worth his salt knows AI can’t write real legal briefs and that several lawyers have been sanctioned for using AI for that very reason.

This man wanted to be Attorney General or White House Counsel. Take that in.

He uses ChatGPT or the like to find legal authorities. Not Westlaw, not LEXIS, not FindLaw, not Cornell’s website. He uses AI.

Just jaw dropping.
 
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#17,395
#17,395


=============

Greg Kelly
@gregkellyusa
28m

What??!!!! Prosecutors told Michael Cohen, “if you don’t Flip on Trump, we will indict your WIFE!”—Now THAT is a crime, not this silly Document stuff. FAKE TRIAL

=============

www.thegatewaypundit.com

UNDER DURESS: Prosecutors Allegedly Threatened Convicted Perjurer Michael Cohen to 'Flip on Trump or We INDICT YOUR WIFE!' | The Gateway Pundit | by Jim Hᴏft

Convicted perjurer Michael Cohen testified under oath that he was coerced into pleading guilty by threats from prosecutors aimed not just at him but at his family.
www.thegatewaypundit.com www.thegatewaypundit.com
 
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#17,397
#17,397
lawgator1 said:
To the extent the debate over the rules of Professional Conduct is about Vohen having taped Trump, I reiterate that the question of whether Cohen violated bar rules is distinct from the question of whether Trump committed a crime.

Even if we assume that Cohen violated bar rules, that does not preclude Trump having committed a crime.
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My entire response was based on your comment that you would record all your clients. I found that alarming and still stand by it.

I think the two of us would have moved on from the topic based on your posts but then I got into it with RockyTop85.
 
#17,398
#17,398
RockyTop85 said:
Because they got Stormy to go all up in the details of the boinking after Judge told them to steer clear of it. Multiple objections sustained to the content of her testimony. Defense is saying she changed her story and the only way for them to impeach her is to go into the same prejudicial subject matter some more. Asked for a mistrial. Denied. Appeals court may not agree with the Judge’s decision on that and the issue seems well preserved.
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The *alleged* boinking LOL
 
#17,400
#17,400
volbound1700 said:
Apparently you don't know Tennessee Code 39-13-603 which makes it a Class D Felony to record someone without their consent.

I stand by my comments on the recordings. It will get you disbarred for a variety of reasons if your client reports you.

You have also dodged several caselaw actions not in the code that would support my assertions on these topics.

The exceptions that you keep pointing out are in very rare instances under very specific categories and even then, some of them were hotly disputed and (as you have pointed out to be fair) have resulted in disciplinary action in certain districts. You are asserting that just because it isn't specifically in writing in the Tennessee Rules of Prof Responsibility, it is alright.

The Bar Associations are NOT governing bodies but they have unique access to the governing body and interpretation of rules. In this instance, they had a body that directly communicated with TN Board of Prof Responsibility and included judges that are fluent on the topics. Granted, my involvement was over a decade ago but I am pretty confident that things haven't changed that drastically since then.
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From the statute:

It is lawful under §§ 39-13-601 — 39-13-603 and title 40, chapter 6, part 3 for a person not acting under color of law to intercept a wire, oral, or electronic communication, where the person is a party to the communication or where one of the parties to the communication has given prior consent to the interception, unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the constitution or laws of this state.
 
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