Michael Cohen: Master Mouthpiece

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by David Schleicher

Want to be a lawyer so famous other lawyers read your name in the back of the bar journal — the section about those disciplined and disbarred? Come study at the feet of the master: Michael Cohen.

Forego merely brutish behavior. Sure, tweeting a picture of your daughter in lingerie and then responding to the critics with “jealous?” — as did Cohen — will get you some good, old-fashioned loathing. No, you want to leave your clients absolutely “apoplectic” as CNN described President Trump after the FBI raid on Cohen’s office.

Tape-recording calls at work is a great start. A “one-party consent” state is not what Mr. Cohen’s clients might hope. Instead it refers to locations where only one of two sides to a call has to agree for recording it to be legal. Record often enough and you’re sure to stumble into illegality by taping a call with someone in a two-party-consent state, such as California.

Even if your state law makes it legal and state ethics rules permit it, you still have plenty of room to screw it up. In Texas, for example, a lawyer can secretly record at work only if the other party also is in Texas. And he cannot mislead about whether a recording is being made. Add to this the general duty of “reasonable care” a lawyer must exercise to prevent disclosure of confidences/secrets, such as under D.C. bar ethics rules. An extensive digital library of calls assumed by the other party to be confidential — as Cohen is reported to have — creates bountiful opportunities to bugger it up under the law or ethics rules.

You know a lawyer can advise a client about whether a particular conduct is legal. To enter the hall of shame you’ll have to go from there to actually suggest a client do something wrong or assist him/her in conduct you know to be illegal or fraudulent. In New York that would be a direct violation of Rule 1.2(d). Don’t settle for explaining that foreign involvement in U.S. elections is illegal. Instead, volunteer for a trip to Prague to help carry it out. That’s how you’ll really impress the federal judge later tasked with deciding your sentence.

Lying on the Sunday talk shows or Twitter is for bush-leaguers. If you want to lose your law license, you need to do it in your professional capacity. Looking again to New York bar rules, a lawyer can only represent something to be true under oath if she knows it to be true or believes it to be true based on “a reasonably diligent inquiry.” Start with misleading the court about the nature of your legal work, then move on to making claims about legal positions your clients insisted you take (when their conduct and comments contradict that), and you’ll be well on your way. The judge’s face turning red is a sign you’re on the right path.

Advanced techniques allow simultaneous violation of multiple rules. Here we’ll rely, as many federal courts do, on the American Bar Association (ABA) model ethics rules. Under Rule 1.4, a lawyer generally must communicate settle offers to the client. Rule 4.1 bans lying to the other lawyer about a material fact. Violate two rules simply by settling a case based on purported promises from your client that are unknown to your client. “You’ll have to ask Michael about that one,” as Trump said.

But why settle for violating ethics rules or criminal law? How about both? Back to the ABA Model Rules, 3.4 is read as prohibiting improperly influencing witnesses. 18 U.S.C. § 1512 (a)(2) makes it a felony to threaten the use of physical force to “influence, delay or prevent” testimony in an official proceeding. Can Cohen reach this transcendent level of impropriety? Only time will tell, but there are hopeful signs: stories about him threatening Harvard students with expulsion for embarrassing Trump, claiming the New York attorney general would have to resign after suing Trump University and, finally, threatening to shut down production of “Sharknado 3” after a presidential part promised Trump instead was filled with his frenemy Mark Cuban.

At last your office is raided by the FBI and your clients issue panicked denials! Only one thing left to do (while your lawyers elsewhere are arguing your case before a judge)…publicly fume some stogies with your crew in front of the photogs. Be sure to include at least one buddy accused of “racially abusing and threatening to run over a black parking attendant” and another with (sound familiar?) Russian connections. Why go to court when Stormy is live tweeting it?

David Schleicher is an attorney splitting his time between Waco, D.C. and Houston who may be reached via David@DeepState.law. This piece originally appeared in the April 21, 2018 Waco-Tribune Herald, where David is on the Board of Contributors.

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