Good Law | Bad Law #91 -Did Michael Cohen violate the Rules of Ethics? w/ Abe Reich
Aaron Freiwald: Welcome back to good law bad law. My guest on this episode is Abe Reich. Abe is the chairman emeritus at the Philadelphia law firm Fox Rothschild and he is a teacher of legal ethics and professionalism at the University of Pennsylvania Law School my alma mater. And we're talking about Michael Cohen President Trump's lawyer and all the varying very serious legal ethics violations that he is alleged to have caused in his representing of Donald Trump. Everything from recording conversations with the President making deals for hush money to Stormy Daniels and others. The role of the lawyer is important as a representative of a client and also as an officer of the court. And although some may be surprised to know there is actually a very important and very serious set of ethical rules that all lawyers are expected to follow. So we have a fascinating conversation with Abe Reich about those rules and how they apply to Michael Cohen. I know you'll be interested in this episode.
Aaron Freiwald: My guest on today's episode is Abe Reich the chairman emeritus of the Fox Rothschild firm here in Philadelphia. And we're talking today about Michael Cohen President Trump's personal lawyer and the issues of ethics that have been raised through his representation of Donald Trump. So first of all Abe thank you very much for being on Good law Bad law.
Abe Reich: It's my pleasure. Thank you for having me.I wan
Aaron Freiwald: I want you just start if you would tell everybody a little bit about your own background and particularly your background and teaching ethics and you teach at my alma mater Penn Law School. But go ahead and give us a little background.
Abe Reich: Yeah I've been practicing law in Philadelphia at the same firm Fox Rothschild for over 40 years. 44 years to be precise. I'm a trial lawyer by training but one of the things that I have done for at least 35 years is ethics and professional responsibility. I've chaired many different committees at the Philadelphia Bar. I do a lot of continuing legal education for lawyers in that area and for the past 14 years I've taught ethics and professional responsibility at Penn Law School your alma mater. I wish I could have said I had you as a student.But I have the privilege of being at the same firm that whole time I tell people I couldn't find a job. But it's been great firm. When I joined we were about 30 lawyers today we're 850 and 22 offices across the country.
Aaron Freiwald: Fantastic. And you do in your law business you do principally commercial litigation but you also do a lot of representation of lawyers and law firms.
Abe Reich: I do. So that's where the legal ethics and professional responsibility - I defend lawyers and law firms and legal malpractice case in breach of fiduciary duty cases in a lot. In a host of violations or alleged violations of the Rules of Professional Conduct which are the standards by which the legal profession is governed.
Aaron Freiwald: And you know I'm sure and we'll see as we go through the multitude of ethics issues that the Trump Cohen relationship has already shown us that you could you could probably teach an entire semester of legal ethics just out of some of the issues we're going to cover. But you mentioned the rules of professional conduct and I think most people might be surprised to learn that there actually is a code of ethics there are rules that lawyers not some but all lawyers are really expected to follow. So give us a little background on the rules themselves and why we have that as a code of ethics.
Abe Reich: The first formal set of rules in the United States were adopted by the American Bar Association in 1908. They were referred to as the canons of ethics. And I always knew when I started practicing that I was dealing with an older lawyer when he referred to the canons the canons were replaced in the 50s by the Code of Professional Responsibility which was a different format but again a governing body of legal principles that lawyers had to follow if they wanted to keep their license and then the American Bar Association in the 1980s did a complete revamp both in terms of format and substance. And today in every state the rules of professional conduct govern they vary from state to state. In minor ways California is the last state in the United States to adopt. They're in the process of adopting the rules of professional conduct today. April 1 1988 Pennsylvania adopted them. And so once the governing body of the American Bar Association adopted a form of rule they distributed to all 50 states and the states will consider and adopt them some in whole some part with some variation. And so since the 1980s every state has come on board and California again is just doing it now.
Aaron Freiwald: Well and I'm sure some people out there maybe many people think that when they think of a lawyer they might think of Saul from you know Better Call Saul and that standard of professional conduct but but these rules are really quite serious and the consequence or consequences for not following these rules can be quite serious too. You mentioned lose your licenses is one extreme sanction that can happen right?
Abe Reich: Violating the rules of professional conduct can lead to a loss of license. Now that is the most severe remedy. But you can be sanctioned in a variety of different ways. You could fail to communicate with a client regularly which could lead to a reprimand by the Supreme Court of Pennsylvania. In Pennsylvania and it's true in I believe every state in the country the highest court of the state governs the conduct of lawyers. In Pennsylvania so for even what might be not particularly serious transgressions you could have to appear before the bar of the Pennsylvania Supreme Court and be reprimanded by the justices of the Supreme Court for conduct that violates it. You can be suspended for a period of time up to five years. You could be disbarred. Which again is the most severe. But the rules of professional conduct should be taken very seriously. In my four decades of practice I am comfortable with saying that the vast vast majority of lawyers comply with the rules of professional conduct. It's those who transgress that make the news and tend to give the legal profession a black eye from time to time.
Aaron Freiwald: And these these rules are so serious and so important that even judges and even Supreme Court justices are required to follow these rules and sometimes we've seen in our history where a Supreme Court justice or two violate them and they can be held accountable.
Abe Reich: That is true but judges have their own code of judicial conduct. It's comparable in some respects but the code of judicial conduct governs the standard of judges and they could be removed from the bench for violating a rule of judicial conduct if it's serious enough.
Aaron Freiwald: Ok so let's set the table. We've got a headline grabbing set of facts here that we're going to use as the basis for talking about some of the ethics issues that have been raised. But set the scene for us with with Michael Cohen President Trump and this 130,000 dollar payment thing. Sure. That really kicks off this whole issue.
Abe Reich: Yeah. Earlier this year there was clearly an attention grabbing where the public learned that Michael Cohen who had been the president's in-house personal counsel for over a decade who had been referred to as his quote fixer in the sense of fixing problems had made a hundred and thirty thousand dollar payment to a woman who has been referred to as Stormy Daniels which was her stage name for allegedly keeping quiet an affair that she had or a sexual encounter that she had with the president before he was president. But the payment was made a few weeks before the election and the initial spin on the story was he did it. The president didn't know anything about it. He paid for it himself by arranging a home equity mortgage borrowed the money to pay the hundred and thirty thousand because he thought it was in his client's best interest. And there was nothing wrong with it.
Aaron Freiwald: And specifically in his client's interests that the details of this alleged affair which I think was back in 2004 2006 something like that that this information should not come out during those final weeks before the 2016 election.
Abe Reich: Well like the spin had a little variation and not dissimilar to so much with this story of this particular tale in the president's escapades. One spin was that he wanted to protect the story from his wife. He did not want to hurt his wife.
Aaron Freiwald: Michael Cohen didn't want to hurt Donald Trump's wife?
Abe Reich: That's right. That story coming out.
Aaron Freiwald: I see.
Abe Reich: That was a spin when people said oh he didn't really want to impact the election. Again that was you know criticized as kind of a dubious position when he said well I was trying to protect this story from his wife. I thought it was in his best interest not to create that division despite the fact that there had been you know so much already in the public that reflected the fact that he was anything but a loyal husband.
Aaron Freiwald: Right. Ok. And it's also important we need we need to know this as part of our fact pattern here because it will come up in a couple of the issues. He Michael Cohen paid this hundred thirty thousand dollars through a company that he set up apparently specifically for this purpose.
Abe Reich: Essential Consults which is what he created it was a Delaware corporation and the money was paid through Essential Consults. And there was an agreement that allegedly was not signed by the president a nondisclosure agreement that he had signed that had penalties. And you know the if anyone is interested enough the agreement is readily obtainable on the Internet and it is a bit unusual. I have seen I would say easily dozens if not hundreds of non-disclosure agreements in my career and I have never ever seen one that defines confidential information to include sexual relations not to disclose with X Y or Z. And a third person I mean so it was clear what the intent of this non-disclosure was and it also reflected the fact that this probably was not an isolated incident.
Aaron Freiwald: Well and you you probably know the name I'm going to share. Now we had George Bochetto on on the podcast a number of months ago when the nondisclosure agreement we're talking about first became public and we picked it apart. You know sentence by sentence to talk about whether it could ever be enforceable and there's a lot of questions about that. Probably most importantly and it bears on what we're going to talk about first the fact that Donald there's a line for Donald Trump to sign this agreement. But he didn't sign. It was only signed by Ms Daniels. Real name I believe is Cliffords. And by Trump's lawyer Michael Cohen.
Abe Reich: Right.
Aaron Freiwald: So the first question has to do with the role of the attorney Michael Cohen is Donald Trump's attorney here right in making this payment and in settling this issue wasn't really a case wasn't a lawsuit but settling this issue for 130000 dollars. If the president is to be believed on this he didn't know anything about this he didn't know any of the specifics didn't know any of the details. Michael Cohen did and Michael Cohen made this deal as an ethics expert as a teacher of ethics and in your you know your four decades of doing this kind of law. What's the problem with that.
Abe Reich: There are a handful of areas that are specifically reserved to the client when it becomes a decision to be made in the attorney client relationship. First and foremost you can never settle a case without client authorization. While you may say to yourself this is in the best interest of a client it's ultimately the client's decision whether to settle or not. In other areas you you can't make a decision whether you should waive a jury trial or not whether you should plead guilty in a criminal case or not whether you could appeal a case or not. Those are the kinds of decisions that are relegated to the client to make. Now The client may say to you you have authorization to settle the case at X dollars. Hundred thousand dollars you may not talk to the client before you settle it. In other words up to 100,000. Up to a hundred. If you can settle it for 50 you have authorization you can do it. The spin here was he did not know about it and therefore under the rules of professional conduct and there are multiple series of rules can not be done. And you know as this story evolved as those in the audience and as you may know eventually the Trump president Trump said the story the spin was Rudy Giuliani had now become his spokesman and Rudy Giuliani said people do it all lawyers do it all the time. Like it was nothing. And I will tell you Aaron that in 40 plus years of practicing I've never done that I don't know a lawyer who has ever done anything like it. And it's preposterous to say lawyers make these kind of payments all the time. That does not happen.
Aaron Freiwald: Let me ask you about the ethics dimension to this because you mentioned a couple other things that a lawyer must not do without a client's expressed approval. For instance waive a right to a jury trial or plead guilty to a criminal charge. I can see why those would be things exclusively reserved to the client because those are constitutional rights. I mean a person has a constitutional right to a jury trial in a civil case and if you plead guilty to a criminal charge you may lose your freedom. But why can't a lawyer settle a claim this was a claim not a not a lawsuit. Why can't as an ethical matter a lawyer take that on for a client he's got an ongoing relationship with this client he's probably settled other matters similar to this and not similar to this why is an ethical matter must the lawyer never do that.
Abe Reich: Because the rules of professional conduct say it rule one point two are the rules of professional conduct which talk about the scope of the representation and if you look at the comments you look at the restatement of law governing lawyers which talk about what a lawyer can and cannot do while it's not of a constitutional dimension. While it's not life or death like a taking a guilty plea or not it is in a civil case one of the most important decisions that can be made. Do I settle the case or not. And as much as the lawyer thinks it's in the best interest of the client you can't do it.
Aaron Freiwald: What if it were to turn out that this was before President Trump was president but what if it would turn out that Trump said to Michael Cohen at some point if anything like this ever should come up maybe he had experience in it and it had come up before who knows if he says if anything like this comes up I give you carte blanche blanket authority. Settle it resolve it don't even tell me about it. I don't want to know. Would that be proper.
Abe Reich: You have an argument. If it was me and as a lawyer I wouldn't do it.
Aaron Freiwald: You wouldn't agree to that.
Abe Reich: Well I mean I would hear them but before I did it I would e-mail or write or call the client and say By the way you would prefer because you don't know. Again ethics and malpractice. You know to engage in a serious act like settling a case the client may say I didn't say that or B that's not the same kind of thing that we talked about two years ago. Three my circumstances have changed dramatically four I would have never paid this sob. Whereas I told you to pay.
Aaron Freiwald: You know I didn't have that in mind. That much money.
Abe Reich: Yeah.
Aaron Freiwald: So really it's really in part that particular rule and that consider that ethical consideration is also to protect the lawyer.
Abe Reich: Totally to protect the lawyer and to protect the client. But you know in today's environment for better or worse I advise and again I represent a lot of lawyers I advise lawyers. You have to practice defensively. Communication is critical to a healthy relationship. Written communication is important to a healthy relationship. Client may tell you something. Send it to him in writing. Let them reflect on it. You don't want buyer's remorse after you do something. It happens it's human conduct it happens.
Aaron Freiwald: And you already mentioned that is another area that the rules of professional conduct cover which is communication between the lawyer and the client.
Abe Reich: Rule one point four.
Aaron Freiwald: Not to communicate about something this important with your client.
Abe Reich: Would be improper.
Aaron Freiwald: OK. That would be a separate ethics violation. If it's right that Donald Trump didn't know anything about this.
Abe Reich: But then he subsequently said after Rudy's gaffe that people kind of made made were critical of he said Oh I knew about it and yes I paid for it.
Aaron Freiwald: After the fact that the fact is that he reimbursed.
Abe Reich: He reimbursed him. That's correct. Right. You know this was a bouncing ball that kept bouncing for a long time.
Aaron Freiwald: There's another rule in the rules of professional conduct that talks about a prohibition on providing financial assistance to a client. That's correct. And so tell us about that. I mean I think that's implicated in this too. If well he paid out of his own pocket for this.
Abe Reich: Here is why it may not be.
Aaron Freiwald: Ok.
Abe Reich: Rule one point eight of the rules of professional conduct which is among the conflict of interest rules specifically says in connection with pending litigation. There was not pending litigation on this matter in connection with pending litigation a lawyer can only advance court costs. But a lawyer is not entitled to pay living expenses for example or to pay a settlement for a client you cannot in connection with pending litigation. I'm sure if you were being challenged on Rule 1 8 advancing expenses for a client one of the defenses would be there was no pending litigation.
Aaron Freiwald: OK. Well you brought this up so let me let me turn to this distinction now. You mentioned the word malpractice and lawyers like other professionals doctors architects engineers accountants can be responsible and may face a malpractice claim and as you've told us you've defended many lawyers and law firms who've been sued for malpractice so how does malpractice differ from the ethics rules that we've been talking about so far. How does that play into what we've talking about so far.
Abe Reich: There has to be in a malpractice case a breach of a duty. You start as a fundamental and a duty of competence in representing someone is kind of a fundamental duty. And if you make a mistake you're supposed to file a case within two years and you wait two years and 10 days you've blown the statute of limitations as it is often said and that creates a breach of a duty. You then have to say Did it cause was there causation of a loss or harm or damages. In a malpractice case you need a breach of a duty. You need causation or cause. And the client has to suffer a damage or loss in a ethics violation you need none of the above. You violate a rule professional conduct whether there is damage or not is not relevant to the equation. In a civil case. It is.
Aaron Freiwald: So in a malpractice case then that would really be the client's claim. So in this case if there were ever to be a malpractice lawsuit on any of these issues it would be Donald Trump himself as the client who would have to bring that claim. That is correct. But the ethics rules are not those can be enforced regardless of what the client has to say.
Abe Reich: They're in every state in Pennsylvania. There is the disciplinary board of the Pennsylvania Supreme Court. It is the enforcement arm. They are in effect prosecutors that prosecute violations of the rules of professional conduct charge lawyers. They hold hearings and ultimately recommend sanctions whether it's a suspension or disbarment or admonition or some other sanction which will ultimately have to be approved by the Supreme Court.
Aaron Freiwald: Now if Donald Trump said and I don't think he's likely to say this now or not anymore because there's a lot of reports that Michael Cohen may be cooperating with the Mueller investigation against Donald Trump. But if supposing Donald Trump said hey it's ok he's my lawyer and maybe this might have been a violation of this rule or that rule it's all ok I'm alright with it. That wouldn't necessarily prevent the disciplinary board in this case it would be New York where Michael Cohen practices.
Abe Reich: not at all.
Aaron Freiwald: Disciplinary board functions on its own.
Abe Reich: A client cannot say it's OK. It didn't bother me that the lawyer did something that violated a rule of professional conduct. You know for example there is a famous case in Ray Himmel out of state of Illinois where a client stole money where a lawyer stole money from a client and she went. The client went to a new lawyer and rather than reporting the lawyer who stole the money he settled the case got her money back. And the problem with it you are obligated under the rules of professional conduct to report conduct like that trustworthy fitness as a lawyer and the lawyer because the client said it's OK Mr. Himmel, in Ray Himmel was given a one year suspension I believe it was.
Aaron Freiwald: That's the that's the subsequent lawyer.
Abe Reich: no no. The subsequent lawyer for not reporting the first lawyer.
Aaron Freiwald: That's fascinating so it's. So the rules not only apply to lawyers but the rules expect lawyers to report violations committed by other lawyers.
Abe Reich: Where they involve trustworthiness honesty fitness as a lawyer you know another lawyer who has committed transgressions that fall in those categories you are duty bound that so often referred to as the rat fink rule. You've got to report the lawyer and your failure to do so in and of itself can be a violation of the rules of professional conduct.
Aaron Freiwald: Now I know Abe you've worked in and around these rules for a long time and you teach this and you've this has been a big part of your practice too and I know this is going to be a fairly obvious question but I want to I want to get this out what we talked about how the ethics rules are different and enforced differently and there's a reason for that. I'm sure there's reasons for that. Why is it so important it's important enough that lawyers are expected to rat fink on another lawyer when it involves trustworthiness. Why is it important that there be this body of rules about lawyer conduct and professional conduct and ethics. And why then is it so important it's not just a matter of curiosity and sensationalism what we're talking about regarding Michael Cohen. But it's important to the profession to lawyering and to the relationship between lawyers and clients. Why is that so important that these rulings exist and that they be enforced.
Abe Reich: Number one the singular purpose of lawyers wear several hats. But one of the most important is a representative of clients. And the rules of professional conduct in 60 plus ways direct lawyers in the manner in which they must deal with clients from the initial retainer agreement to the termination to conflicts of interest so the client lawyer relationship is critical and the rules give specific directions so there can not be any question the lawyer is also a representative of the court system and the rules give lawyers guidance to make sure they carry out the integrity of a court system without a court system that the public does not have confidence in is a you know Russia or a different country not the United States. And the lawyer is also a public citizen that has a duty to the public in general and the rules of professional conduct direct lawyers and give guidance to lawyers to ensure that the public is well served even if they're not your client by the legal profession.
Aaron Freiwald: So it really is it's not just about lawyering it's really about the law and respecting and credibility in the law in the legal system.
Abe Reich: That is correct.
Aaron Freiwald: Well let's look at another issue that's come up in the Michael Cohen Donald Trump relationship. Exactly where I was going. Abe's pointing to something in his notes and it's exactly the point I was going to go to next which is of reports that Michael Cohen was recording and I think he's actually disclosed the contents of some of those recordings already that Michael Cohen attorney recorded conversations with his client Donald Trump without Donald Trump knowing about it.
Abe Reich: Correct.
Aaron Freiwald: What's what's wrong with that.
Abe Reich: What isnt wrong with it. I mean you know.
Aaron Freiwald: You know let's face it sounds horrible but it's an ethics issue.
Abe Reich: Take a practical everyday occurrence. You call your bank or you call your credit card. The first thing they will say to you this conversation may be recorded for training purposes or this conversation may be recorded for some other reason for accuratacy quality control.
Aaron Freiwald: Right.
Abe Reich: And that's not of the level of fiduciary relationship that exists between the lawyer and the client. You know it is deceitful. Why are you recording without the client's knowledge. Now in Pennsylvania it would be unlawful. There is a distinction among the states in the United States what is referred to as a two party state where both parties to the conversation have to consent. And if you record my conversation with you in Pennsylvania and I don't consent that's a violation of the law. New York is a one party state.
Aaron Freiwald: I have your consent to record this conversation.
Abe Reich: You do.
Aaron Freiwald: So we're OK.
Abe Reich: We're OK.
Aaron Freiwald: But in New York it's one party.
Abe Reich: So Michael Cohen lawfully could record Donald Trump's conversation and he did it and CNN blasted it 45 times in an hour and I've listened to it repeatedly. And what is clear and there is guidance in New York guidance opinions that make it clear that it is improper ethically for a lawyer to routinely record without the client's permission conversations with a client. And they view it as deceitful and that's a long body of ethical standards in New York that clearly any lawyer with any experience would have known.
Aaron Freiwald: What about this payment the 130 thousand dollar payment we talked about it from an ethics standpoint. And I'm not asking you to be an expert in criminal law or election law but if it turns out that Michael Cohen made this payment specifically to make sure that she didn't talk about this alleged affair right before the election. I know there's been a lot of reporting that suggests that could also be an election law violation because it could constitute a campaign contribution a thing of substantial value to the campaign itself. That's I mean that's obviously something lawyers should be very careful about.
Abe Reich: No question about it. Now I don't claim to be a an election law expert but I have heard the pundits on this issue. And there's more than a convincing claim that this could fall in that category.
Aaron Freiwald: Now one of the other things that's come up is that it was it was front page news and breaking news all over the networks and all this when when it was happening. That is part of a criminal investigation in New York. The U.S. attorney office in New York raided Michael Cohen's offices and his home and other places and scooped up a lot of files and computers and things like that. Now FBI raids happen all the time but I don't think they happen all that frequently with lawyers. And I think most people probably know the basic idea that an attorney and a client have a protection around their communications around.
Abe Reich: No question about it.
Aaron Freiwald: Their conversations around their e-mails around the letters and so on. So tell us a little bit about that and about the attorney client privilege and what's involved there.
Abe Reich: The attorney client privilege which is one of the oldest principles in the common law of the legal profession was enacted to give clients a sense of comfort that they could come to a lawyer and open their secrets the most deep secrets even illegality and be comforted by the fact that the lawyer would not disclose those confidences.
Abe Reich: And as long as the privilege was maintained those confidences would be kept secret. There are exceptions to it one being the crime fraud exception which has come up in this context.
Aaron Freiwald: We'll get to that.
Abe Reich: But so let's stay with this. So as you may recall when they raided it to raid a lawyer's office. And in this case the president's lawyer's office they had to jump through a lot of hoops. This was not done frivolously. It was done with a great deal of substantiation that there was a need for it.
Aaron Freiwald: So that they had to get a warrant.
Abe Reich: That was approved by a judicial officer. Not only that within the Justice Department there are criteria before you can subpoena a lawyer. And as you may recall once there was subpoenaed there was a process engaged in by the court that set up a team of U.S. attorneys who were not involved in the prosecution called the Screen team that would screen these documents to determine are any of these attorney client privilege. And so they would then allocate the documents in a pile for attorney client communications and ones that were not. Moreover the district court judge appointed a retired Federal Court judge to oversee it and to make her own analysis of the material. And the irony of all of this they jump through all these hoops. They determine that certain tapes were privileged Rudy Giuliani waved it as it relates to the tape because he said the tapes were exculpatory meaning they were going to be helpful to the president and therefore he chose to waive them. How you could have made that judgment on the one tape I've listened to is beyond my comprehension. He may be smarter than all of us and has some grand scheme plan that is going to be an aha moment with the entire public. I just don't see it.
Aaron Freiwald: So you've made. It's important consideration that the attorney client privilege. And it's there are there are whole sections in the rules of professional conduct that talk about the lawyer's duty of confidentiality.
Abe Reich: That's correct.
Aaron Freiwald: So this is an ethical issue as well.
Abe Reich: That's right. Rule one point six is confidentiality of information. In fact under the rules of professional conduct any information relating to the representation is to be kept confidential with certain exceptions that rule is actually broader than the attorney client privilege. But it too can be waived by a client.
Aaron Freiwald: Well that's what that's where we were getting to so. So the duty is on the lawyer to maintain confidentiality.
Abe Reich: And it is the privilege of the client to waive.
Aaron Freiwald: Right. So the client can say it's OK this communication can go out or this recording can go out or or whatever that might be. And apparently at least as to some of these communications through through Giuliani. They did waive that privilege. But some of these documents which may and that this comes up. You know I am I've been doing this for two and a half decades. I've seen plenty of examples of this in my practice too where a document is is where there's a claim that it's protected that it's privilege but in fact it's a document that isn't protected because it falls into one of the exceptions. And you mentioned the crime fraud exception. I know people probably heard about that when this story was first coming out of a couple of months ago. But explain what the crime fraud exception is to this.
Abe Reich: A lawyer can give guidance to a client about ways to comply with the law. A lawyer can not participate with the client in evading the law or committing a crime. And so if I communicate with my client and tell the client how we can wire funds from Europe or wire funds to avoid the recognition of tax liability or to do things that will violate the U.S. law we are participating in a crime together and the rules of professional conduct do not protect nor does the attorney client privilege protect communications where if a lawyer and client commit a crime together.
Aaron Freiwald: So if the client comes into the lawyer and in conversation or in writing and confesses to a crime let's say.
Abe Reich: That's right.
Aaron Freiwald: That would still be protected.
Abe Reich: Past crime protected clearly.
Aaron Freiwald: But if but if the attorney in some way participates in it. I mean the fact of protecting that confession let's say that's not considered participating the crime by
Abe Reich: Not at all.
Aaron Freiwald: OK.
Abe Reich: It's a past crime. As long as it's not an ongoing crime.
Aaron Freiwald: Not a future crime of some kind. I'm going to go out and kill this person or I'm going to get him back.
Abe Reich: There is an exception in the rules of professional conduct where a lawyer can disclose the intention of a client to commit an act that will cause death or substantial bodily harm or even substantial financial harm. The lawyer has the authority under the rules of professional conduct to make that disclosure because again one of the hats that the lawyer does is to protect the public. Client may be a bad actor but you know that your client about to go out and break someone's knees. You have the right to call the police and tell them.
Aaron Freiwald: OK. All right. We have to talk about Michael Cohen lobbyist but I don't even know if that's a fair word to use for him. It's come out since all these reports have been circulating in the last bunch months that not only did Michael Cohen act as the president's lawyer in these ways. We've been talking about so far but he really also acted in his own interest to receive funds from some pretty major American companies. To use his connection or trade on his connection to sell his connection to President Trump for money. So tells us a little bit about that.
Abe Reich: Well factually as soon as the president's elected he gets a job with an outstanding major 100 law firm. As a lawyer number one.
Aaron Freiwald: Michael Cohen did.
Abe Reich: Michael Cohen. Number two AT&T pays him hundreds of thousands of dollars. I think it was thousand dollars. As a consultant. Novartis pays him one point two million dollars. Now I have observed Michael Cohen. He may be in his own cab sphere a very knowledgeable about cab law. But I am willing to bet the house that he knows nothing about FDA FCC Federal Communication federal drug law or the laws to which these people were paying him a lot of money.
Aaron Freiwald: Right. Novartis is a big drug company.
Abe Reich: Right. And he had no experience in that and it was obvious they were hiring him to get insight in to the president. Now the rules of professional conduct specifically rule eight point four e make it improper for a client to state or imply that they have the ability to improperly influence a public official. Now the argument would be made that that's exactly what he was doing when he was taking. Why would they have given him this amount of money with no experience unless they expected him to be able to influence the president's decision in a way that would be favorable to their economic interests.
Aaron Freiwald: Now what. But but that is something that goes on all the time. Right. I mean people swing around the revolving door in Washington every day of the week they leave government for a lobbying firm or for industry and rollback in the government people know that happens all the time. So why is this a problem here or potentially a problem.
Abe Reich: He wasn't acting as a lobbyist he was a lawyer and lobbyists have certain constraints. Lawyers have further restraints and he was not hired to lobby the Congress on behalf of an industry or a client. It was frankly unclear what he was hired to do. Indeed when the public outcry about Michael Cohen and all of his shenanigans were revealed all of these deals were pulled off the table. He was discharged from the law firm that had hired him or his. Let me I should say his relationship was severed. Number two the general counsel of Novartis stepped down the relationship ended AT&T relationship ended. All reflecting one might say a guilty state of mind. You know when the public learned you paid how much to this guy. What is wrong with you. And so they immediately took corrective action to put an end to it. He was a lawyer not a lobbyist.
Aaron Freiwald: Do you think any of the any of these issues that we've talked about are going to end up on your next law school ethics final exam.
Abe Reich: There is a you know part of these started I taught in the spring semester at Penn and the inside the insipidness of the Michael Cohen payment was already out there and it was great stuff. I mean we were having played out in the public arena some of the most graphic snafus that a lawyer could do and we were able to dissect them and analyze them against the rules of professional conduct. So if there's nothing else that has been happening in this entire year of Michael Cohen and the president and Michael Avenatti and Stormy Daniels and the Miss America and all these other things they have taught ethics to the public to lawyers and law students and I anticipate that I will continue to teach from these very graphic examples of lawyering at a level that I would never instruct lawyers to engage in.
Aaron Freiwald: Well I did have a wrap up question but you just mentioned Michael Avenatti who is Stormy Daniels' lawyer and that reminds me I want to ask you about that one of the things that's characterized his role in this unfolding drama over the last many months actually was mentioned in a podcast I was listening to The New York Times did a profile I believe in the New York Times Magazine recently. And they were talking about this on the New York Times podcast just the other day how Michael of Avenatti has probably broken all the records for the number of media interviews he's done.
Aaron Freiwald: I mean there were times when you know he would be in the green room waiting to be interviewed on one set and there would be a camera crew in the green room with him interviewing him for some other program. The issue of a lawyer engaging in that kind of media for a client. Does that raise ethics issues.
Abe Reich: They do indeed you have to be careful. The Supreme Court made it clear involving a lawyer in Las Vegas by the name of Genteel who who who held a press conference and described the conduct of the police and others in defending his client who had been charged criminally in a certain conduct and it went up to the Supreme Court in an opinion by Justice Kennedy who is about to be is now retired said that the lawyer has an obligation not only to be an advocate in the courtroom but as an advocate in the court of public opinion. So lawyers have at least since Genteel and probably before when I first started you would never talk to the press right advocated in the court of public opinion. But you can't do it in a way that misstates facts that is going to prejudice a adjudicative proceeding and the volume of public statements by Michael Avenatti in which he was accusatory of Michael Cohen of the president led to the filing of a temporary restraining order in California trying to restrain Michael Avenatti from making any further public comments. Michael Cohen's lawyers did that because of the belief in the First Amendment and because the proceeding was still distant the court denied that T.R.O. But in New York when Michael Avenatti chose to file what's known as a pro hoc vice to be admitted in New York for the specific purpose of getting involved in the litigation in New York the judge was critical of him and said if you're going to continue on this public relations campaign you may not want to be in this court. And so interestingly Michael Avenatti had the judgment to withdraw his application to be admitted in that court and has continued to give every interview that anyone wants.
Aaron Freiwald: Well and this this isn't a brand new issue either with Michael Avenatti I mean I'm remembering back to when I was in law school and at that time the OJ Simpson trial was in full swing. And I think every morning on the way to court and every afternoon at the end of the court session for the day the plaintiff's lawyer team would come out and stand in front of a bank of microphones
Abe Reich: actually the defense lawyer
Aaron Freiwald: the defense lawyers did and even the prosecutor to a lesser extent but they did it too.
Abe Reich: As you may recall the OJ Simpson defense team included a lawyer whose specialty was in handling the press conferences after every day of court. That was his role.
Aaron Freiwald: Was that the Kardashian's father.
Abe Reich: He may have been one of them.
Aaron Freiwald: Would explain a lot.
Abe Reich: Yeah but that was his role. Yeah. You never cross-examine witnesses even you know argue in court. He was the front man before the cameras.
Aaron Freiwald: Yeah. So that's interesting that Avenatti is going to have maybe have to watch his step.
Abe Reich: There are rules of professional conduct that talk about publicity. You know you've got to be very careful not to prejudice ongoing proceedings.
Aaron Freiwald: Well I don't want to ask you to bet the house wouldn't want you to do that. But you've been around disciplinary boards those those boards that admin that investigate and sanction lawyers for violation of these rules. And you know in your practice and you're teaching there are a lot of ethics questions at least at this point about some of what Michael Cohen's been involved in and his work for Donald Trump. Are these the kinds of things that could lead a lawyer to lose his license. Is that something you think there's a serious risk of here.
Abe Reich: I think there is a serious risk that Michael Cohen could lose his license or could be sanctioned at a lesser degree but that's probably not a big concern for him at this point. He's got bigger concern.
Aaron Freiwald: Right.
Abe Reich: Like his liberty.
Aaron Freiwald: Right.
Abe Reich: But clearly there has been enough done that warrant a disciplinary board looking at his conduct. I am not. I will not be surprised if someone told me today they're already doing that.
Aaron Freiwald: Well then you can lose or you can be acquitted of a criminal charge acting as a lawyer or being a lawyer and still face disciplinary sanctions
Abe Reich: No question about it.
Aaron Freiwald: I'm thinking of President Clinton specifically. He acquitted ultimately during the impeachment trial in the Senate but then was disbarred.
Abe Reich: No question about it.
Aaron Freiwald: I believe by the Arkansas Bar Association.
Abe Reich: That is correct. So the different standards right.
Aaron Freiwald: Different standard. Fascinating stuff. Abe Reich chairman emeritus of the Fox Rothschild firm here in Philadelphia and professor or teacher of lawyer of legal professionalism and ethics at the University of Pennsylvania Law School. Thank you so much.
Abe Reich: It's my pleasure. Let's continue to watch this bouncing ball because I think it will be educational to all of us. Thank you.
Aaron Freiwald: Thanks Abe.