The recent search of President Trump’s Lawyer, Michael Cohen’s, office, home, safety deposit box, and hotel room is a very big deal when it comes to issues of attorney-client privilege and client confidentiality.  It has been reported that the search is part of an investigation into Cohen for possible bank fraud and wire fraud. President Trump has tweeted that attorney-client privilege was “dead” and “now a thing of the past.”  As the case before Judge Kimba Wood in the Southern District of New York is demonstrating, President Trump is wrong and he just doesn’t understand attorney-client privilege.

Judge Wood has yet to decide who will have the first look at materials the government seized with the search warrant, though she has signaled that it won’t be President Trump, most likely won’t be Cohen, and may not be a government “taint” team walled off from the prosecutors doing involved in the investigation.  Rather, it is more likely that Judge Wood will appoint a special master to review the material and decide what is and is not covered by attorney-client privilege and possibly work-product.  Both attorney-client privilege and work product are allied with client confidentiality, and all three rules or doctrines are based on the assumption that effective legal representation requires free and open communication between client and counsel.  All three are aimed at encouraging such open communication by keeping certain information from one’s adversary and the public.

Faculty teaching attorney-client privilege, client confidentiality, and work-product should think about using the issues Judge Wood and possibly a special master have to consider.   For example, the materials seized will likely contain the following information:

  • Client names;
  • Communications between Cohen and clients; and
  • Possible materials prepared in anticipation of litigation if Cohen worked on any matters in which litigation was a possibility.

Ask your students to be the special master, and ask them to identify which category or categories apply to the above materials or information.  When it comes to the communications between Cohen and clients, the students will need more information to see if the communications fit the definition of attorney-client privilege:  (1) a communication; (2) made between privileged persons (typically the lawyer and client); (3) in confidence; and (4) for the purposed of obtaining or providing legal advice or other assistance to the client.  Communications that do not involve legal advice would not be covered.  Also, communications in furtherance of a crime or fraud would fit the crime fraud exception.

When it comes to client names, they are not covered by attorney-client privilege.  On the other hand, the names may be covered by client confidentiality as “information relating to the representation of a client” under Rule 1.6(a), as New York State Bar Association Ethics Opinion 1088 (2016) explains.  There are some state advisory ethics opinions take a different position, such as California Formal Op. 2011-182 (2011), which stated:  “In most situations, a client’s identity is not considered confidential . . . .”  This is just another reminder that it is important for a lawyer to research and understand how one’s jurisdiction is likely to approach ethics issues.

How the justice department will protect attorney-client privileged documents in U.S.A. v. Michael Cohen

Source: OTHERWISE: How the justice department will protect attorney-client privileged documents in U.S.A. v. Michael Cohen

The furious tweets of Donald Trump that attorney client privilege is dead are repeated in the restrained language of his lawyers’ memorandum.

 As usual the best source of information is the primary source: the United States Department of Justice, whose memorandum (excerpted in the post above) explains how any documents protected by attorney client privilege will be handled.  In essence the process is to determine if documents seized  contain communications between attorney and client which relate to the representation. Confidentiality is protected – unless the communication is evidence of the attorney’s participation in a crime – in which case a judge’s review till be sought.  – gwc

Protecting Prospective Clients with Diminished Capacity | Legal Ethics in Motion

Protecting Prospective Clients with Diminished Capacity | Legal Ethics in Motion BY GEOFFREY MARCUS A recent opinion from the New York Cit…

Source: OTHERWISE: Protecting Prospective Clients with Diminished Capacity | Legal Ethics in Motion

Protecting Prospective Clients with Diminished Capacity | Legal Ethics in Motion


A recent opinion from the New York City Bar Association’s Committee on Professional Ethics finds that a lawyer may disclose a limited amount of confidential information when a prospective client with serious diminished capacity is at risk of substantial physical, financial, or other harm.  Read the full opinion here.

The opinion describes a scenario in which a neighbor brought a tenant facing immediate eviction to an attorney for legal assistance. During their meeting, the attorney became concerned that the tenant was so seriously mentally incapacitated that she could not retain a lawyer. Despite the absence of an attorney-client relationship, the attorney still wanted to help the tenant.

Rule 1.14 of the ABA Model Rules of Professional Conduct explicitly addresses the circumstances in which a lawyer may take protective action for the benefit of current clients with diminished capacity. The rule remains silent as what a lawyer can do for prospective clients, but the Committee’s recent opinion provides guidance on this issue.

The Committee concluded that mental capacity is not a factor in determining whether a person is a prospective client and that lawyers owe the same duty of confidentiality to prospective and current clients alike. The Committee references Rule 1.14(c), which provides lawyers with implied authorization under Rule 1.6(a) to disclose confidential information reasonably necessary to protect current clients with diminished capacity. Therefore, the Committee reasons that Rule 1.14(c) applies to prospective clients.

In addressing the earlier scenario with the tenant, the Committee noted that the “lawyer is impliedly authorized to reveal confidential information about the prospective client to a court, a social services agency or another, but only to the extent reasonably necessary to protect the prospective client’s interests.” However, the Committee emphasizes that, when a lawyer interacts with the court and others, she must clarify that she does not represent the prospective client and that no attorney-client relationship exists.

OTHERWISE: Lawyer investor in litigation funding in conflict with client it finances – NY State Bar Assocation

In an advisory ethics opinion the New York State Bar Association has says that RPC 1.8. bars a lawyer with a substantial interest in a litigation finance company from representing a client whose litigation is financed by that company.  This seems right to me.  For access to justice reasons we allow a lawyer to have a stake in the outcome of litigation.  But a significant ownership interest in the financier adds another layer to what is already an inherently conflicted representation. Read the full opinion here.

Source: OTHERWISE: Lawyer investor in litigation funding in conflict with client it finances – NY State Bar Assocation

Leading Voices Weigh In On TIKD Antitrust Suit – National Law Review by Annie Dike

Opposing Views

“The Florida Bar basically said: ‘This is our monopoly. TIKD is violating it, and any lawyer that participates with TIKD is putting their license at risk.’ Now you have the fox guarding the henhouse, and the Florida Bar does not have the authority to do that,” Pete Kennedy, attorney for TIKD in the ongoing antitrust suit against the Florida Bar that we reported on in December, recently told us in an exclusive IMS interview.

Kennedy had previously argued this position in 2016 when he joined forces with other “access to justice” companies in filing a persuasive amicus brief on behalf of LegalZoom in the antitrust case the Supreme Court decided against the North Carolina Dental Examiners Board. Like the tooth whiteners in the Dental Examiners case, TIKD, a tech startup that makes legal services (e.g., handling traffic tickets) accessible to Florida residents through a smartphone app, is now pursuing similar antitrust claims against the Florida Bar for using unauthorized practice of law allegations to push TIKD out of the Florida market. After the DOJ filed a Statement of Interest in the TIKD case, we spoke with the following lead voices in this matter:

  • Pete Kennedy, the antitrust attorney for TIKD and LegalZoom in the filing of an amicus brief in the Dental Examiners case;
  • Tom Spahn, President and COO of TIKD;
  • Ken Friedman, VP and in-house counsel for LegalZoom, the first legal tech company to sue a state bar association;
  • Tom Gordon, Executive Director at Responsive Law, who joined LegalZoom in the amicus brief filed in the Dental Examiners case; and
  • Renee Knake, Professor of Law & Doherty Chair in Legal Ethics, University of Houston Law Center who contributed to the amicus brief filed by LegalZoom in the Dental Examiners case.

Questions to Consider

Our initial question to these parties: Why all the work of filing a costly and protracted antitrust suit against the Florida Bar? “We really struggled with the decision to file this suit,” Tom Spahn, TIKD President and COO, explained. “It is incredibly costly for a startup company to assume the legal costs of a suit like this, but we believe in the legal industry we are creating.

Not only do we provide an affordable, guaranteed service to the economically-disadvantaged who cannot easily clear a check the size of a traffic ticket, we also provide guaranteed clients with a legal need to the many lawyers out there who are underworked or underemployed, and we wish the Florida Bar could see that. We’ve been transparent from the beginning in trying to set up a business model that would not violate the Bar’s rules, and the Bar refused, and still refuses, to speak with us.”

“What is unique about this case is the incumbent,” Kennedy explained. When TIKD, a company that is operating successfully in Georgia, Maryland, Washington, D.C., Virginia and California, began offering its services to residents of Florida, a competitor, The Ticket Clinic, a law firm based in Miami that offers similar traffic ticket-handling services, filed an ethics complaint with the Florida Bar. While the complaint was under investigation, the Bar issued an informal ethics opinion giving the impression that attorneys working with TIKD were acting in violation of the ethics rules governing the unauthorized practice of law. “We do not know how the informal opinion was disseminated or how it got in the hands of The Ticket Clinic lawyers, but they began using it to contact attorneys who were working with TIKD and telling them, in doing so, they were putting their license at risk,” Kennedy said, which essentially put TIKD out of business in Florida.

In response, Tom Gordon, Executive Director at Responsive Law, who joined in the LegalZoom amicus brief, explained: “Just like Avvo and JustAnswers offers users an answer to a legal question for a two-digit price as opposed to a four-digit price, these tech companies are not engaging in an unauthorized practice of law. Rather, they are making legal services more affordable and accessible to disadvantaged people. It is frustrating and unfortunate to see an organization of lawyers thwart competition in this area and they are not immune.”


When it comes to antitrust allegations, are state bars immune? Not according to the DOJ. Not entirely, at least. In its Statement of Interest recently filed in the TIKD case the DOJ has made it clear: without active supervision (not an ongoing rubber stamp of approval) by the state supreme court, state bar associations are not immune.

However, even with supervision from the supreme court, Renee Knake, Professor of Law who contributed to the LegalZoom amicus brief, claims: “It’s a legal monopoly. The legal profession is unique in that, in support of their argument for immunity, they claim they are an ‘arm of the court,’ but the court is also made up of lawyers, many of whom will soon be returning the practice. Meaning, at every stage of the intended separation of powers, there are lawyers; their regulations are all enacted, enforced, and interpreted by lawyers.”

“The Supreme Court made clear in the Dental Examiners case that letting professionals enforce their own monopolies creates a ‘real danger’ that they will act to further their ‘own interest,’ rather than the public interest,” Ken Friedman, VP and in-house counsel for LegalZoom, commented. “State bars should not be able to argue sovereign immunity to sidestep the Supreme Court’s ruling and I am not at all surprised by FTC vigilance where they feel the Dental Examiners decision is not properly followed.”

By filing a Statement of Interest in the TIKD suit, a case that will likely change the face of the legal tech sector, the DOJ has definitely solidified its interest in the matter and aligned its position with that of companies like TIKD, LegalZoom, and Avvo that are seeking to compete in this market.

“To be sure,” the DOJ explained in this Statement of Interest, “new and innovative mobile device apps can be disruptive. Business models entrenched for decades have witnessed new competition from mobile platforms that can profoundly change an industry. But almost invariably, the winners from the process of innovation and competition are consumers.”

In response to a request to the Florida Bar for a statement concerning this matter, we were informed: “It is the policy of the Florida Bar never to comment on pending litigation.” We were encouraged instead to include their position as stated in the Bar’s filings in this matter wherein the Bar has asserted that it is immune from antitrust allegations because it is “an agency of the State of Florida, an arm of the Florida Supreme Court, specifically authorized to conduct investigations of the unlicensed practice of law.” Meaning, according to the Bar, the anticompetitive conduct alleged in TIKD’s complaint was not “taken by or controlled by ‘active market participants.’”


Now that you have heard from many of the lead voices in this matter, including the DOJ, we want to hear from you, followers: What do you think of the Florida State Bar’s conduct in this matter, its argument for immunity, and the likely outcome of this pivotal case?


Link to the National Law Review article here.

ILEC 2018 Melbourne Call for Proposals due July 31, 2018

International Legal Ethics Conference VIII
Legal Ethics in the Asian Century

6-8 December 2018

Proposals for presenting a paper or panel at ILEC VIII are cordially invited. Presenters are encouraged to submit papers within one of the following streams:

  1. Technology, Legal Ethics and Society
  2. Interdisciplinary and Empirical Approaches to Legal Ethics
  3. Philosophy and Legal Ethics
  4. Regulation of the Profession(s)
  5. Ethics and Legal Education
  6. Globalisation and Legal Ethics
  7. Legal Ethics and Access to Justice

The Conference will be organised into sessions of 90 minutes each. Normally, three to four papers will be presented in any one session.

Proposals for a paper should include a title and abstract of between 100 and 300 words. Please also include your name, institutional affiliation (if any) and up to six keywords describing your topic.

Alternatively, a proposal for a Panel involving discussion or other formats will be considered. If you are proposing a panel, please state the title of the panel, with a brief description, together with the names of the panellists presenting. Where possible, we would encourage panel proposals to be submitted with the full set of abstracts appended.

Proposals should either indicate the stream in which the paper or panel is to be presented or clearly identify an alternative theme within which the proposal sits. We will seek to accommodate alternative themes where viable.

In order to accommodate as large and diverse a group of presenters as possible, participants are requested to submit no more than two proposals.

The deadline date for proposals is July 31, 2018.

Proposals should be submitted by email to with the subject heading “ILEC8 paper proposal.