Confidentiality and Hannity the Client

New York’s version of ER 1.6 of the Rules of Professional Conduct got shredded yesterday. Oh well … but for the fact that confidentiality represents a core aspect of the attorney-client relationship.

Some background might be helpful. Search warrants, executed last Monday, generated a bunch of material from Michael Cohen. He’s an attorney who works for President Donald J. Trump. And Everett Broidy. And one more client, Sean Hannity.

The government and Judge Kimba Wood needed to know who Mr. Cohen represented. Why? To determine the scope of the claimed attorney-client privilege. The privilege only applies to communications between Mr. Cohen and his clients; whither, the need to know the identity of the clients.

In Search Warrants, Confidentiality, and More I briefly mentioned confidentiality. ER 1.6 addresses the topic. In Arizona the rule “goes broad,” covering “information relating to the representation … .” In New York ER 1.6 only covers “confidential information,” which the rule defines to include “information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential.”

In Arizona we treat “information relating to the representation” so broadly that it includes the very fact that an attorney represents someone. Without consent, an attorney does not have the right to talk about who he or she represents. The rule makes sense, if you dig down just a bit. Imagine yourself owning a business. Publicly, you look like a success. Not so much, in fact, and you’re consulting with a prominent bankruptcy attorney. Do you want her telling people you’re her client? Or, you prevailed in sex harassment cases brought against you. Want your attorney talking about the successful outcome, which requires him to disclose the fact that you were sued?

But, but … public records identify counsel in lawsuits. Sure, and that means others can know a fair amount about our lives. So what. We’re focused on the attorney’s duty to clients. Strangers can find out about the sex harassment cases, but they have no right to know about them from your attorney’s mouth. And, obviously, the fact that you’re meeting with a bankruptcy attorney ought to be your business, and only your business.

Back to the shredding. We don’t know what Mr. Hannity told Mr. Cohen or anyone else, but we can assume he asked Mr. Cohen not to disclose the fact that they had an attorney-client relationship. We can also assume—I have not seen a transcript of the hearing—that talk about Mr. Hannity being embarrassed reflected a reference to ER 1.6. Regardless, we learned about the representation.

This situation offered an obvious and easy solution. Disclosure to the feds and the judge, with an order directing all parties to be mum about the identity of the client. We had no right to know about the Hannity-Cohen attorney-client relationship.

The attorney-client relationship offers confidentiality for the client. Rightly or wrongly, that aspect has been at the core of legal practice for centuries. In today’s media-hyped, social media-driven world, losing sight of confidentiality happens. Too many practitioners talk about public matters, failing to focus on their own duties. Or, they assume compliance only requires not disclosing privileged communications.

Mr. Hannity needs no defense from me, and I leave the journalism ethics issues to others. For me, the disclosure was wrongful, and the fact that we now know about it offers a teachable moment.