In the News

Judge Napolitano Got It Wrong About Sean Hannity and Michael Cohen

judge napolitanoAfter the news broke regarding the FBI raid on President Donald Trump’s attorney, Michael Cohen subsequently revealed that Fox News talk host Sean Hannity was a former client of his. Judge Andrew Napolitano disagrees with Cohen about that.

During a hearing earlier this week, Kimba Wood, the federal judge overseeing the Cohen case, ordered Cohen to reveal who his “mystery” client was in open court.

Cohen revealed that his client was none other than Sean Hannity.

Hannity immediately took to social media to tweet about his relationship with Cohen:

Although, it appears from Hannity’s tweets that his relationship with Cohen was never put into written form, does that rule out an attorney-client relationship?

On Tuesday, Fox News’s Judge Andrew Napolitano appeared on Fox News’s “Outnumbered Overtime” and claimed that Hannity can’t claim he didn’t have an attorney-client relationship and still assert a privilege.

Napolitano said:

“I love him. I’ve worked with him for 20 years. He can’t have it both ways. If he was a client, then his confidential communications to Mr. Cohen are privileged. If Mr. Cohen was never his lawyer, then nothing that he said to Mr. Cohen is privileged.”

Napolitano also said that paying for services isn’t enough because more is required before there is an attorney-client privilege.

“The attorney-client privilege requires a formal relationship reduced to writing for a specific legal purpose.”

Fox News host Harris Faulker then asked Napolitano, “So anything that is there regarding Sean Hannity can be revealed?”

Napolitano answered:

“In my view, yes.”

I would respectfully disagree and assert that Napolitano got it wrong.

As a former practicing attorney, one of the things that was drilled into my head during law school is that as an attorney, you must be careful in what you say to people who seemingly are just asking for your “advice” even in a casual setting outside of your law office.

If someone knows that you are an attorney and seeks your advice based upon that knowledge, no “formal relationship reduced to writing is required” at least not in California and generally, it holds true anywhere in the United States.

An implied attorney-client relationship could arguably have been created at that moment.

As such, the attorney-client privilege can be invoked.

An attorney-client relationship exists under the following circumstances:

“An attorney-client relationship can come into existence in one of two ways: expressly (meaning the attorney and client have come to a formal agreement of representation) or implied (meaning the client reasonably believes that the attorney is providing legal representation, even if there is no written contract). An express relationship is obviously created with the execution of a written agreement or the formal meeting of the minds of the attorney and the client. But, if an attorney has ever seemed reluctant to answer a question in an informal setting, it is likely because s/he was trying to avoid creating an informal, or implied, attorney-client relationship.

Once an attorney-client relationship has been formed the attorney has a number of responsibilities to his client, including attorney-client confidentiality. While the responsibilities created by the attorney-client relationship vary from state to state, they generally include:

Fiduciary duty: The attorney must act in the best interests of the client at all times. This includes avoiding any situation that would put the client’s interests at odds with the attorney’s or those of any other clients.”

The California State Bar has this to say about when an implied attorney-client relationship is formed:

“Implied contracts are far subtler, as they can be formed anywhere outside the attorney’s office. A ballgame, a barbecue, a cocktail party, a hot tub – the setting really doesn’t matter. Any place an attorney and would-be client might talk is a potential ground zero for an attorney-client relationship to begin. Wood-paneled walls and conference rooms with an A-plus view are not required; what’s important is the subject matter of discussion. Thus, the key first question regarding an implied contract would be: Is the prospective client seeking legal advice?”

NBC News recited the Professional Responsibility and Ethical rules in New York where presumably Hannity would have sought advice from Cohen.

“In New York, the formation of the attorney-client relationship focuses upon the client’s reasonable belief that he is consulting a lawyer, in his capacity as a lawyer, and his manifest intent to seek professional legal advice. The formality of, say, a written agreement or an invoice, is not an essential element in the employment of an attorney, though the attorney is encouraged to reduce agreements to writing.”

Unfortunately, this time it appears that Judge Napolitano is mistaken.


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