Barry Temkin discussed whether Michael Cohen committed a crime under New York law when he recorded phone calls he had with President Trump in secret in Law360, “Cohen Tapes Show Broken Attorney-Client Relationship.” (subscription required)
Barry said “there are extreme circumstances in which a lawyer might be in an ethical safe zone when surreptitiously recording a client, as when a client had threatened the attorney with violence or extortion. But secretly recording smacks of deception and self-dealing, even in New York, a so-called one-party consent state for recording one’s conversations, he said.
And even if Cohen had anticipated some kind of dispute with Trump and the need for protection, those circumstances would likely call for him to quit the relationship with Trump altogether, not to turn to trickery.
“A lawyer deceiving an adversary is bad, but there is a certain amount of puffery and exaggeration that is expected. But deceiving the client violates the bedrock principle of the legal profession and tends to destroy the attorney-client relationship, which is fundamentally a relationship of trust.”