Is It a Good Idea to Record Client Communications?
Wouldn't it just be weird if Michael Cohen's recordings become President Trump's undoing?
Cosmicly weird because tape recordings are what brought down President Nixon. He refused to give up recordings of conversations with co-conspirators in the Watergate scandal, and the rest is history.
But Cohen's recordings are also lawyerly weird because -- besides Trump saying the attorney-client privilege is dead -- recording client communications is not always a bad idea.
Cohen is a whipping boy for poor lawyering these days with all kinds of wrong. It goes way beyond a botched hush agreement between a porn star and a president.
The FBI raided his office looking for, among other things, evidence of bank fraud or campaign finance violations. That happens when you use $130,000 of your personal money to benefit a candidate for president.
The recordings, however, are the next big thing. Who said what, when, where, how, and why? In another context, a lawyer could really use those answers to serve a client well.
For example, litigators routinely videotape depositions to preserve evidence for trial. Civil and criminal investigators record conversations all the time, and often use them effectively in court.
Effective in Court
Estate planners, especially, do well to record clients swearing out heirs from wills or trusts. Stan Lee recently filed an elder abuse suit against a former manager, but preceded it by videotaping his clear intentions for all the world to see.
Of course, it's not always a good idea to record conversations. It can be criminal to record anyone without the person's knowledge or consent.
For Michael Cohen, it might have been a really bad idea. Even though it's not a crime to record your conservations with others in his state, ethics overseers are watching him.
Above the Law says he was "galatically stupid" because "it's simply not done." But who knows whether it will bring down a president for real wrongdoing, or in the universe of weird, the recordings will buy him a way out?
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