Jurisprudence

We Must Protect Attorney-Client Confidences

It’s wrong to celebrate the fact that Sean Hannity’s name was revealed in open court.

Michael Cohen and Sean Hannity.
Michael Cohen and Sean Hannity.
Photos by EDUARDO MUNOZ ALVAREZ/AFP/Getty Images and Jamie McCarthy/Getty Images.

That Michael Cohen’s secret third client turned out to be Sean Hannity is almost too good to be true. I get that. But the lawyer in me is not happy that an attorney blurted out the name of a client in open court, when the client didn’t want his identity revealed and had no reason to think it ever would be.

As a rule, lawyers shouldn’t have to reveal who their clients are. Just like doctors and therapists can’t reveal the names of the people they treat, lawyers in virtually every state have an ethical obligation not to reveal information “relating to the representation of a client” unless the client consents. The prohibition is extremely broad and includes even the names of clients that are not otherwise public. There’s good reason for that rule, and yet many people are questioning why, as a general principle, Cohen’s representation of Hannity would be something Hannity had a right to keep secret.

Why does it matter that a lawyer’s lawyer had to reveal his client’s clients?

Imagine you’re a tenant who’s concerned your landlord is engaged in illegal practices, so you seek the legal advice of a well-known tenants’ rights lawyer. Later, that lawyer is forced to reveal her client list publicly. The fact that you’re on it might make future landlords less likely to rent to you, as they could perceive you to be potentially litigious.

Or imagine you’re having marital troubles and you seek advice from a divorce attorney. You end up patching things up with your spouse, but when the divorce attorney is forced to reveal all his clients, everyone knows you once contemplated divorce.

The courtroom reaction to the disclosure of Hannity’s name proves the point. Judge Kimba Wood told Cohen’s attorney, “I just don’t understand the argument that just because this undisclosed client consulted Mr. Cohen, that is somehow embarrassing or an invasion of privacy.” Really? As one journalist noted, the revelation of Hannity’s name drew “gasps and some chuckles.” Reporters raced for the exits. (I imagine it looked like this.) In other words, it was embarrassing for Hannity to be revealed as a client of an attorney who seems to specialize in securing hush payments for clients who have had illicit affairs. In Hannity’s case, there was the added embarrassment that he had been reporting on Cohen without disclosing the relationship.

Just as there are exceptions to attorney-client privilege, and just as there are times when the government can seize documents from lawyers’ offices, there are occasions when attorneys have to reveal publicly the identities of their clients. This may have been one of those times. In the Cohen hearing, the judge ultimately agreed with an attorney representing the media, who argued that the public had the right to know the name, given the very broad attorney-client privilege Cohen was asserting. (“[T]housands if not millions of documents” might be protected, he argued).

But regardless of the specific circumstances of the Cohen case, it’s important to remember that we all benefit from a system in which you can seek legal advice confidentially, without having to worry that your lawyer is going to have to publicly reveal the fact that she is your lawyer. We should celebrate the fact that such a system exists, not that in this case we got to learn the identity of a famous lawyer’s secret client.

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