Attorney Michael Cohen could lose his law license as the result of secretly recording former client President Trump, experts say, as current Trump attorney Rudy Giuliani raises the prospect Cohen committed serious professional misconduct.
Giuliani said Wednesday he believes Cohen will face attorney discipline after Cohen attorney Lanny Davis gave CNN audio of Trump discussing a pay-off for former Playboy model Karen McDougal, who alleged an affair.
“I don’t think we have to do anything about that, I think the bar association will,” Giuliani told the Washington Examiner.
If the 2016 conversation took place in New York, it was perfectly legal to record. But an array of ethical issues could dog Cohen.
“I wouldn’t be surprised if he was disbarred, absolutely not,” said Bennett Gershman, a former prosecutor in the Manhattan District Attorney’s office and an expert on attorney misconduct at Pace University’s law school.
“We have so many different scenarios where it’s possible [that] he engaged in ethical misconduct. You start piling one episode on top of another, on top of another. I could see at the very, very least a suspension,” said Albany Law School professor Vincent Bonventre.
“I don’t think they’re just going to slap his wrist if any of this is true,” Bonventre said.
There’s a complex web of potential offenses within New York’s Rules of Professional Conduct for attorneys that Cohen may have committed, experts said.
Giuliani did not cite specific rules that Cohen may have violated, but said recording Trump “does show Cohen to be extremely deceptive. He doesn’t tell the president he’s being taped.”
Dishonesty is one potential offense, experts said, including if Cohen helped Trump lie about an affair with McDougal. Or Cohen may have tripped a conflict of interest rule by recording conversations for his own benefit rather than his client’s. Or he could have violated other rules in disclosing the conversation.
“Obviously lawyers don’t do this. This is extraordinary, probably unprecedented,” Gershman said about secretly recording a client. “The only reason he would do it is to protect himself. And protecting himself over protecting clients is something lawyers are not able to do, it’s unethical.”
Dan Abrams, a New York City-based attorney who specializes in legal malpractice and business litigation, said a 2003 opinion from the New York City Bar’s ethics committee “refused to say secretly taping a client could never be ethically permissible, but they also said it would be rare to have circumstances where an attorney secretly taping a client could be ethically permissible.”
The tape’s existence was first reported by the New York Times, which did not name its source, though Cohen is widely suspected. Giuliani commented on the tape, arguably waiving attorney-client confidentiality over its content before Cohen’s attorney Davis released the tape.
Even if Giuliani waived confidentiality, however, Abrams said releasing the tape still could be a violation of professional standards.
Rule 1.6 requires attorneys to keep client communications confidential, but Abrams pointed to Rule 1.8(b) as saying “in sum and substance a lawyer cannot use information gained in the representation to the client’s detriment absent consent from the client.”
“An attorney can be compelled to keep a client secret even if the attorney-client privilege does not apply to the secret,” Abrams said.
Gershman said there may be larger issues, including the possibility that Cohen participated in campaign finance violations or criminal conspiracy with the National Enquirer, which ultimately purchased McDougal’s silence for $150,000. He said if crimes are prosecuted, Cohen’s cooperation could influence the fate of his law license.
Gershman agreed that a waiver of attorney-client privilege over the call would not absolve Cohen of penalties.
“Even if [attorney-client privilege over the conversation] is waived, I think from the standpoint of lawyer misconduct, you still have these questions [of other ethical misconduct]. You’re still focusing on the ethical conduct of lawyers. You don’t want lawyers who lie, cheat, and engage in conduct prejudicial to justice,” he said.
Bonventre said Cohen faces a dizzying swirl of potential infractions.
“If Cohen was helping his client engage in illegality or criminal conduct, that’s ethical misconduct right off the bat, and the conversations would not be covered by the duty of confidentiality, but he’s already in trouble for engaging in ethical misconduct for helping with the lie,” he said. “If on the other hand if he wasn’t helping with anything criminal, those conversations are covered by the duty of confidentiality, and so releasing them would be ethical misconduct.”
Cohen presumably already is under investigation following his apparent admission of misconduct earlier this year in relation to a $130,000 pay-off to porn star Stormy Daniels. Cohen said through his attorney David Schwartz that he paid Daniels without Trump’s knowledge — something experts say constitutes serious misconduct.
In New York, anyone can file a complaint challenging an attorney’s law license, and investigators can initiate reviews on their own if they read a worrisome headline.
An investigation begins when a disciplinary prosecutor asks the accused attorney to respond to allegations within 20 days. A 21-member committee of attorneys meets monthly and then votes on whether to bring charges or issue nonpublic discipline, such as an admonition. If Cohen has a record of past nonpublic admonitions, some experts believe that could weigh against him.
If the committee votes for charges, a referee would moderate a trial-like hearing and submit the record to a five-member panel of judges on the First Judicial Department appeals court, which could dismiss the case, with no public record, or issue a censure, suspension, or disbarment. The disciplinary process can take months or, if the court is involved, more than a year.
Generally, attorneys who refuse to cooperate with the disciplinary process receive an interim suspension and ultimately disbarment. Attorneys convicted of certain crimes, meanwhile, are automatically disbarred.
“There are so many possible scenarios under these different facts under which he could be in ethical trouble,” Bonventre said. “If he’s helping Donald Trump lie: ethical misconduct. If he’s engaging in some kind of negotiation without his client’s consent: ethical misconduct. If he’s doing something that’s incompetent on behalf of his client: ethical misconduct. If he’s engaged in confidential conversations and then discloses them: ethical misconduct. There are just so many possibilities.”
Davis did not respond to a request for comment.
