Is it normal, or at least precedented, to require an attorney to publicly divulge his/her client list in a crime-fraud prosecution? As has been widely reported, for instance here, Judge Kimba Wood recently required Michael Cohen to reveal his client list in open court during the legal proceedings surrounding his prosecution via the crime-fraud exception to attorney-client privilege. Notably, this has caused significant embarrassment for Sean Hannity, an otherwise secret member of this client list. So far as I am aware Wood's ruling is perfectly consistent with the law: attorney-client privilege protects communication between a client and his or her lawyer but it does not protect the fact that such communication occurred. Nevertheless Wood could have chosen to require Cohen to reveal his client list to prosecutors privately, and I am wondering how much precedent there is for instead requiring that the disclosure occur publicly. Are there other examples where an attorney prosecuted under the crime-fraud exception to attorney-client privilege was required to reveal his or her client list in open court? I can't claim I am personally concerned a great deal for Hannity's reputation, but the case has much broader significance and I am trying to understand the context as thoroughly as possible. As pointed out in the comments, this question is quite similar to another question. The answers to that question did not answer mine because I was already convinced of the legal justification for publicizing the client list and I am specifically interested in precedents / case studies - the current answer to this question is exactly what I had in mind. But the similarities are undeniable and I am new to this forum, so I leave the decision to mark this as a duplicate to the existing community.
This sort of thing is very common. Particularly in the tax context, the IRS seeks to compel lawyers to reveal their clients all the time, and the courts are pretty much all in agreement that attorney-client privilege generally does not protect the identity of a client. For example: United States v. Goldberger &amp; Dubin, P.C., 935 F.2d 501, 505 (2d Cir. 1991) United States v. Servin, No. 17-1371 (3d Cir. Feb. 1, 2018) Matter of Grand Jury Empanelled Feb. 14, 1978, 603 F.2d 469 (3d Cir. 1979) In re Grand Jury Proceedings, 680 F.2d 1026 (5th Cir. 1982) In re Grand Jury Investigation No. 83-2-35, 723 F.2d 447 (6th Cir. 1983) In re Grand Jury Witness (Salas), 695 F.2d 359, 361 (9th Cir.1982) More typically, the disclosure happens in front of the grand jury or in response to a subpoena, but it also can happen in open court like it did with Cohen. That happened in the second Third Circuit case above, where federal officials were investigating the source of 42,000 pounds of pot they'd found on a boat off the coast of New Jersey. There were disputes as to who owned the ship -- and might therefore be liable for the drugs -- so the DOJ needed to nail that down. There was some reason to believe that Attorney Markowitz was involved in transactions that would shed light on the ownership, so they subpoenaed Markowitz to appear before the grand jury. He showed up and refused to answer basically anything or produce any records, so the prosecutors asked a judge for a ruling on whether he was permitted to withhold his clients' identities based on attorney-client privilege. This is where the case starts to look sort of like the Cohen situation. The attorney was asserting privilege, and the judge said he would need to review the records in camera to see if the privilege applied. But he couldn't say if attorney-client privilege applies if he didn't know who the clients were, so he ordered him to identify his clients. He refused, so the judge told him to take a moment and think about it before he held him in contempt. Unlike Cohen's attorneys, the guy still refused, so the judge held him in contempt and ordered him to jail. On appeal, the Third Circuit agreed that attorney-client privilege generally does not protect the identity of a client. There are exceptions when there's already enough information known about the client that revealing the identity would expose them to criminal prosecution, but that was not the case here. The court still reversed the contempt finding, holding that Markowitz had a Fifth Amendment right not to identify the clients because doing so might expose him to criminal prosecution, but that element doesn't seem to exist in the Cohen situation. (Interesting side-note: The government was represented in this case by a 29-year-old Samuel Alito.) The weird thing about this, to me, is that the courts have a procedure to avoid making the disclosure public: "A well recognized means for an attorney to demonstrate the existence of an exception to the general rule, while simultaneously preserving confidentiality of the identity of his client, is to move the court for an in camera ex parte hearing." In re Grand Jury Investigation No. 83-2-35, 723 F.2d 447, 454 (6th Cir. 1983). Why Cohen's guys didn't go that route is beyond me.
united-states A similar issue came up in my answer to Can a private person deceive a defendant to obtain evidence?. I don't think the question itself is a duplicate, so instead I'll just copy the relevant section from my answer with minor edits. The short answer is yes, the privilege applies. The case of US v. Tyler, 745 F. Supp. 423 (W.D. Mich. 1990) matches your hypothetical almost exactly. The defendant, James Tyler, shared a prison cell with Melvin Deutsch, who said that he was a lawyer, had what appeared to be a law school diploma on the wall of his cell, and was addressed as &quot;counselor&quot; by other inmates; but in fact was not a lawyer. Nevertheless, correspondence between Tyler and Deutsch regarding Tyler's legal issues was held to be privileged and inadmissible. Tyler was held to have had a reasonable belief that Deutsch was a lawyer, despite that Deutsch had never been licensed to practice law in any jurisdiction, and that the law school diploma was (presumably) fake. Tyler evidently didn't check on either of those things, and the court did not seem to think that he reasonably should have. Also, Tyler apparently did not know the seemingly obvious fact that a convicted felon cannot practice law, let alone while actually in prison. However, this was not felt by the court to be &quot;ingenuous&quot;: &quot;To expect a layperson to be familiar with the internal discipline procedures of the Bar is unreasonable.&quot; There is also a discussion of such situations in the following article: Grace M. Giesel, Upjohn Warnings, The Attorney-client Privilege, And Principles Of Lawyer Ethics: Achieving Harmony, 65 U. Miami L. Rev. 109 (2015). Available at this link See Section IV.D.2 on page 140: In addition to applying the honest-and-reasonable-belief analysis in the attorney-client privilege setting to the question of representational relationship, courts have also applied the analysis when the person consulted is not, in fact, a lawyer. The courts addressing this issue have stated that the privilege applies to a communication even if the person consulted is not admitted to any bar and has enjoyed no legal training. If the putative client honestly and reasonably believes that the person consulted is a lawyer, and if the other requirements of the privilege are satisfied, the privilege applies even though the person consulted is, in fact, not a lawyer. See the article for additional citations. The article also mentions that certain states make this principle explicit by statute. For instance, the Kentucky Rules of Evidence, Rule 503(a)(3): &quot;Lawyer&quot; means a person authorized, or reasonably believed by the client to be authorized to engage in the practice of law in any state or nation.
When it can be “reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference.” Which is the standard the New York appeals court endorsed in 2014 for “defamation by implication”. So, on the face of the statements, they have to imply fraud and they have to show that the speaker intended to imply fraud. Whether they did that is up to the jury.
The accusation would be the crime of securities fraud ("insider trading" is legally meaningless), under 15 USC 78j(b). There is a bit more elaboration in 17 CFR 240.10b5-1. That law prohibits using "any manipulative or deceptive device or contrivance in" in connection with a securities transaction. Under 15 USC 78ff, violation of the law can result in a fine of up to $5 million and 20 years, thus it is a crime. As a crime, the standard of proof required is must higher than it in for a civil forfeiture (which can be as low as "reasonable suspicion"). In the US, and pursuant to the Due Process clause, that requires proof beyond a reasonable doubt, that is (from in re Winship), "proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged". The statute itself does not state the elements that must be proven to secure a conviction, but they can be discerned based on jury instructions (which are circuit-specific). The 9th Circuit instruction is here. You can see that there are 4 specific allegations that have to be chosen between, and the prosecutor has to have at least alleged one of those prohibited acts (so that the jury can decide if the prosecution has proven beyond a reasonable doubt that the accused did that thing). The evidence you have presented could constitute "reasonable suspicion", but not "proof beyond a reasonable doubt". If we had a different standard of proof in criminal trials, where it was sufficient to just suspect based on a small bit of evidence that a person may have done something prohibited, then the conclusion could be different. Or, if you had stronger evidence surrounding the sale, your argument might carry a bit more weight. In other words, criminal prosecution is based on quite a lot of specific and objective evidence about what happened. An example of the kind of evidence and allegations required to get the ball rolling can be seen here; for "insider trading" specifically, look here (this case is based on an FBI investigation, where an agent will presumably testify to hearing the defendant state a plan to violate the law).
Normally, the prosecution case will not rely upon the testimony of the defendant. Instead, the prosecution will call all of its witnesses until its evidentiary case is complete. Then, the defense case opens and it may call witnesses. The defense is not obligated to call all of the witnesses that it stated that it anticipated that it would call prior to trial and the jury doesn't know which witnesses the parties said that they anticipated that they were going to call and didn't call. Until the defense case is closed, the defendant can call himself or herself as a witness if he or she wishes to do so, but is not obligated to do so. Once a defendant starts testifying (generally in his or her own case) he or she has generally waived the Fifth Amendment right not to testify. So, the prosecution may cross-examine the defendant in this situation. But since the prosecution's case is usually already closed at this point, the prosecution's cross-examination is limited to the scope of the defendant's testimony under questions from his or her own lawyer (there are some nuances of how this is done when the defendant is self-represented and has no lawyer). The prosecution cannot expand the scope of questioning of the defendant to new topic areas. I can imagine deviations from this pattern in odd circumstances, but they would be very rare.
Identifying someone as a criminal without charging them and thereby giving them an opportunity to clear their names has due process implications, largely because of the associated reputational damage. DOJ policy therefore advises against naming unindicted co-conspirators: Ordinarily, there is no need to name a person as an unindicted co-conspirator in an indictment in order to fulfill any legitimate prosecutorial interest or duty. For purposes of indictment itself, it is sufficient, for example, to allege that the defendant conspired with "another person or persons known." In any indictment where an allegation that the defendant conspired with "another person or persons known" is insufficient, some other generic reference should be used, such as "Employee 1" or "Company 2". The use of non-generic descriptors, like a person's actual initials, is usually an unnecessarily-specific description and should not be used. The policy comes from a case where they did identify two unindicted (alleged) co-conspirators, and the Fifth Circuit ordered the expungement of the portions of the indictment that named them, agreeing with their claim that they had a right a due process right "to protect their reputations ... against the opprobrium resulting from being publicly and officially charged by an investigatory body of high dignity with having committed serious crimes." U.S. v. Briggs, 514 F.2d 794 (5th Cir. 1975). At first blush, the description does seem to fall into the "unnecessarily specific" category, but note that the language doesn't actually say "Individual 1 became President in 2017," it says that Cohen's conduct occurred "in or about January 2017," and that Individual-1 had become President "at that point." So if the conduct occurred before noon on January 20, 2017, we'd be talking about President Obama. That's obviously hyper-technical, but we are talking about the Department of Justice here. Another possibility is that the success of the campaign/conspiracy may be necessary information for sentencing purposes. I'm not all that familiar with the Federal Sentencing Guidelines, but my understanding is that a sentence may be reduced if a defendant had withdrawn from a conspiracy in time to prevent its fulfillment. Because that did not happen here, Cohen would not be entitled to that reduction.
united-states But what is that legal reason? Why would an organization not be able to state their position with respect to the issue, such as &quot;We believe we acted correctly, but this will be decided in court&quot;? Is there a law saying that commenting a court case is illegal? Who does this apply to? Or is this just some guideline or established advice to avoid problems (which ones)? Legal Ethics Considerations There are circumstances when commenting publicly on litigation violates the ethical rules for lawyers related to trial publicity See Rule of Professional Conduct 3.6 (the numbering system for professional conduct rules for lawyers is uniform nationally in the U.S. although the substance of the rules can differ in detail from state to state - Colorado's rule is fairly typical). Mostly this rule calls for avoiding statements that could prejudice a jury unless the other side has already done so and those statements need to be rebutted. This rule states (in its Colorado version): (a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. (b) Notwithstanding paragraph (a) and Rule 3.8(f), a lawyer may state: (1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; (2) information contained in a public record; (3) that an investigation of a matter is in progress; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto; (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and (7) in a criminal case, in addition to subparagraphs (1) through (6): (i) the identity, residence, occupation and family status of the accused; (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;(iii) the fact, time and place of arrest; and (iv) the identity of investigating and arresting officers or agencies and the length of the investigation. (c) Notwithstanding paragraph (a) and Rule 3.8(f), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity. (d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a). Statements such as &quot;We believe we acted correctly, but this will be decided in court&quot; are allowed and are not terribly uncommon. But, making a comment about something that can be easily inferred from the publicly available documents filed in court provides little or no positive advantage for a litigant. Also, one doesn't have to say much to create at least a colorable Rule of Professional Conduct 3.6 issue that a mediator can raise in settlement talks, or that a judge can be forced to analyze. Even if the claim of unethical trial publicity ultimately doesn't hold water, it still muddies the waters and distracts lawyers and litigants from dealing with the substance of the dispute. The Risk That A Statement Will Be Used Against You Usually, the main concern is similar to the concern about talking to police: Anything you say can and will be used against you at trial. For example, this week former President Trump's public statement about his knowledge of classified documents, which are the subject of an ongoing federal criminal investigation of him, seriously harmed his position legally. (His statement was made quite a while ago in a semi-private forum, but at a time when the possibility of a criminal investigation still should have been on his radar screen.) In the civil rape-defamation case against him (as noted, for example, in this Law.SE answer), Trump's decision to continue to speak publicly about matters that were the subject of active litigation against him in an earlier case resulted in an extended statute of limitations and an opportunity to refile the case without having to worry about Presidential immunity from liability for statements he made while in office. It isn't just former President Trump that does things like this, but his conduct provides good textbook examples of what lawyers worry about when their clients talk about cases that are being litigated. Social media statements about pending cases by litigants routinely provide powerful evidence against them in trials. Some clients (particularly politicians and many senior executives of big and medium sized businesses, but also more ordinary people with big egos) are &quot;forces of nature&quot; who can't resist running their mouths, usually to their detriment, when given the least leave to do so. It is easier to teach them to say &quot;no comment&quot; across the board about pending litigation, than to transmit the depth of understanding necessary to comment without saying something potentially harmful. Lawyers spend many hours and sometimes days preparing their clients for depositions for a reason. Avoiding Annoyance To Opposing Counsel, Parties, And Judges Making a comment about pending litigation has the potential to aggravate opposing counsel and can emotionally influence non-lawyer opposing parties with whom a negotiated settlement will be reached 90%+ of the time (only about 1-2% of civil cases go to trial, but some are resolved by default judgments or on motion practice as opposed to by settlement). It can also irritate a judge who frequently prefers to be out of the public spotlight when necessary, even when the statements made aren't prohibited, and judges in the U.S. have lots of discretionary authority.
A party to a civil suit in a US court generally has wide latitude on discovery. If it is not completely implausible that one of those text messages might contain something helpful to the other side, then they might well be able to demand and obtain them. This would be true even if Jan has no plans to use any of them. If Jane thinks that there is something in some of those messages which should not be disclosed, she could, normally with the advice of hr lawyer, file a motion to limit discovery in some way. Whether there is good grounds for such a motion will depend on very specific details of the facts, and is beyond the scope of an answer at this forum. It is true that Jane is only required to produce the messages if the judge in the case has in fact ordered this. It would be highly unethical for Jane's lawyer Arnold to lie to here about this. If he did so and got caught, it might cost him his license to practice law, plus additional penalties. If Jane seriously suspects that he is outright lying to her, and colluding with the opposing party, she needs to take steps to confirm or disprove this, or if she can do neither, to obtain a different lawyer.