Did Michael Cohen Break the Attorney/Client Privilege?

Last Wednesday, Michael Cohen testified to Congress about lying about his dealings with President Trump. The testimony was personal and salacious. It painted a vivid picture of the mob-like world Trump has operated for the better-part of a decade, and revealed the shady underbelly of the Trump campaign and presidency.

Michael Cohen had been President Trump’s lawyer for the last 15+ years. Trump often referred to Cohen as his right-hand man, and it appears that Cohen was Trump’s “fixer.” The longstanding attorney/client relationship between Trump and Cohen made many testimony viewers ask, did Michael Cohen break the attorney/client privilege?

The short answer is yes, Cohen definitely violated the attorney/client privilege. In general, the attorney/client privilege is a rule that ensures communications between lawyers and clients remain confidential. Under the rule, attorneys may not divulge their clients’ secrets, and others may not force them to do so. The attorney/client privilege applies to: (i) any communication intended to be private, (ii) when the lawyer is acting in a professional capacity, or (iii) when an actual or potential client receives legal advice from the lawyer.

The subject matter of Cohen’s testimony was absolutely covered by the attorney/client privilege, and Cohen’s testimony definitely violated it. However, you may be surprised to learn that a lawyer cannot be charged with a crime for breaking the attorney/client privilege. There is no law that makes it illegal to break the privilege.

However, a lawyer can be disbarred from practicing law for breaking the privilege, and aside from reputation, disbarment is an attorney’s motivation for maintaining the attorney/client privilege. In this case, Michael Cohen was already disbarred by the State of New York for pleading guilty to tax fraud to and lying under oath, so in his judgement, he had no reason to maintain the confidentiality.

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