WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. THIS BLOG HAS BEEN CALLED "THE DEFINITIVE BLOG ON MIAMI CRIMINAL LAW" BY THE NY TIMES, THE WASHINGTON POST, THE POPE, AND DONALD TRUMP WHO ALSO ONCE SAID IT WAS "REALLY GREAT". POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Monday, April 16, 2018

THE OTHER SIDE OF THE COIN

With the revelation on Monday that Fox network host (we cannot bring ourselves to call it News) Sean Hannity was the third "secret" client of New York lawyer Michael Cohen, there is a natural tendency to feel smugly happy. 
Let's review Mr. Cohen's client list. 
First up- the current POTUS on whose behalf Mr. Cohen paid $130,000.00 to a porn star Unbeknownst (cough cough cough- we can't get through that with a straight face) to the President. 
Second- Elliot Broidy, the former deputy finance chairman of the Republican National Committee. 
And Third- Sean Hannity. Sanctimonious Fox Host, who regularly blasts the Clintons and Obamas for their "immoral ways". 

The President allegedly slept with a porn star. Enter Cohen. 
Broidy admittedly got a Playboy Playmate preggers and needed to pay her. Enter Cohen. 
And Hannity....? Perhaps a speeding ticket? Or a complaint about a bad meal at the Palm in NYC?  Or a landlord-tenant dispute? What could it be? What could it be that required the special skills of Mr. Cohen, Esq??

Here's the common thread of the three. Yes, they're men, but that's not it. 
Yes, they're older married men. But still, not what we are looking for. 
Hmmm...could it be that they're all mainstays of the religious right that believes sex is reserved for marriage and marriage is reserved only for two people of the opposite sex. 

There is a strong urge to call out the massive hypocrite that Hannity is. 
But there is a more important issue at play here. 
Attorney-Client Privilege.

Broidy and Hannity went to a lawyer with a problem. They have done nothing illegal that we are aware of. They are entitled to have their lawyer keep their secrets. 
It was disturbing to read Monday that Judge Kimba Wood (who is a great answer to the trivia question "name the second person Bill Clinton wanted to nominate for Attorney General before he nominated Janet Reno" - Zoe Baird was the first of course) forced the disclosure of Hannity's name in open court. That was wrong. Hannity had a right to have his secrets kept and Judge Wood was wrong to force the disclosure in open court. 

Of course Baird and Hannity aren't entitled to our support and sympathy. They have zero ability to ever see the principle behind an issue. They jump on any issue that helps their right-wing agenda regardless of whether it could later be used against them or their cause.  

But some of us are enlightened. Some of us can look behind the schadenfreude we feel about the revelation of the hypocrisy of Broidy and Hannity (Trump was always a what-you-see-is -what-you get- type of creepy guy). 

What occurred in the SDNY Monday was disturbing for all lawyers and clients. 

From Occupied America, where secrets are important, fight the power. 



32 comments:

Anonymous said...

Call hannity a hypocrite based on what?

From hannity:

"Michael Cohen has never represented me in any matter,” the conservative commentator wrote on Twitter. “I never retained him, received an invoice, or paid legal fees. I have occasionally had brief discussions with him about legal questions about which I wanted his input and perspective.”

“I assumed those conversations were confidential, but to be absolutely clear they never involved any matter between me and a third-party,” Hannity added.

Rump you are are lame for suggesting hannity is a hypocrite based on nothing other than your imagination.

Lame!!!!

Anonymous said...

Judge Wood was correct. Disclosing Sean Hannity’s NAME as a client does NOT violate any attorney client privilege.

You are wrong on this RUMPOLE.

Anonymous said...

Rumpole, Hannity says: Cohen has never been his attorney. Hannity has never paid Cohen for any legal work. Hannity has never discussed with Cohen a matter involving a third party. (All legal matters involve a third party.)

So, Hannity has never retained Cohen or paid Cohen or discussed with Cohen a legal matter.

Not sure I see the problem.

Rumpole said...

Lets see if Mr. Hannity is telling the truth. I have a hundred ratting around my wallet with nothing to do that says when the wash comes out on this senior' Hannity had a "Stormy" problem. Let's face it- Cohen wasn't a guy you went to for a divorce or to write or review a contract. But we shall see.

And 12:42 AM I disagree. A lawyer's client list is privileged. Let me give you a separate example. Say you are ...hmmm I don't know, say the current first lady of the United States. And say a prominent divorce lawyer in DC had her records subpoenaed and it turns out Melania was listed as having retained the lawyer. Not good. And I believe, but I haven't researched it, that the act of merely having an attorney-client meeting with a lawyer is a privileged record of the lawyer's office.

Anonymous said...

At least in the civil arena, the existence of a attorney/client relationship (so the name of the client), the date of the communications, the form of the communication, and the general subject of communications (without disclosing the details of the communication) are not privileged. So, I don't see that the Judge did anything wrong. In fact, a whole lot more could have been disclosed without infringing the attorney/client privilege.

And lets also remember that the privilege belongs to the client, and not the attorney. So, the attorney cannot hide behind the privilege.

Last, in the event of disclosure of privileged information (other than through waiver), the client's privileged material isn't admissible in court. There is nothing about that statement that says that it is necessarily a secret from the public. From a certain point of view, if Hannity's privileged information gets disclosed in this process, and that information is not part of a conspiracy conducted with/through his attorney (thus destroying the privilege), he may be buying himself a free pass from future litigation. And that's what the privilege is about - protection from litigation (and not necessarily protection from public opinion).

Anonymous said...

You will see that Sean Hannity had an affair with Kimberly Guilfoyle and that she was pregnant...

That is speculation based upon things that occur at the network.

Claude Erskine - Browne said...

Discussing with an Attorney legal matters where a person seeks legal advise and input, and that person assumes it is confidential, creates a Attorney - Client relationship and makes those discussions and the related matters Confidential under Attorney - Client Privilege. Even if No money is exchanged.

Anonymous said...

I can't stand Trump, Hannity, Fox "News," etc.

That said, am I understanding Rumpole to say that communicating with a lawyer evokes the presumption that the client did something wrong? I'd be surprised to hear that philosophy coming from a criminal defense lawyer.

Anonymous said...

Youre playing from your old GWB playbook. Trump has never used religion to moralize or shame sex. He's been a known libertine his whole life -- and likely the most "liberal" GOP potus candidate in our lifetimes.

Anonymous said...

As usual Rump you're off base. The disclosure of Hannitty as a client was due to the poor lawyering of Cohen and Trump. They forced the judge's hand to apply settled 2d Circuit law.

Anonymous said...

Agreed. Though I am no fan of the players we cannot ignore that this circus is creating precedent. The idea of a special magistrate instead of an internal taint team is correct, though contrary to common practice. The idea that an office will "police themselves" with no need for ANY oversight while going through privileged information is disturbing to say the least. We would never allow this of the defense, why do we do so of the Government when a special master solves the issue.

Carmen M. Vizcaino

Anonymous said...

SUPREME COURT HANDED DOWN TWO MAJOR DECISIONS TODAY, ONE STRIKING DOWN THE AGGRAVATED FELONY DEPORTATION BASIS ON THE SAME GROUNDS AS JOHNSON, AND THE SECOND REQUIRING COURTS TO LOOK DOWN TO THE LAST DECISION ARTICULATING A REASON FOR THE DENIAL OF A HABEAS CORPUS PETITION IN A DEATH PENALTY CASE.

Anonymous said...

The problem is that Cohen went to court to seek an order to permit his "clients" the right to seek their files and object to U.S.Attorney review. Accordingly, he had to name the clients for whom he wanted relief. Cohen claimed that Hannity was his client. Can anybody explain to me why he would claim that if it wasn't true? I know the little Goebels and Baghdad Joes who defend Trump on this blog suggest that everyone who reports the Presidents activities are liars but Hannity said he considered his communications with Cohen protected by the "attorney client" privilege. Fortunately for Sean there is no sane person who believes he is a serious journalist. In any event, his beef is with his attorney and only his attorney.

Anonymous said...

Rump, please take off the Roy Black Blog on the right side in that its almost 2 years old and I am tired of looking at it. thanks

Anonymous said...

9:11

I'm highly skeptical whether you are correctly stating the law. Do you have any cites? Your assertion that ACP protects details but not the general subject of a communication is bizarre, IMO.

Your point that the client holds the privilege is irrelevant to the discussion at hand. Hannity never waived anything. So that surely doesn't justify the judge's actions.

More fundamentally, you seem to suggest that unless there was a valid assertion of ACP, it follows that the judge's actions were proper. Not so. For a rather unnecessary example, whether the prosecutor contributed $ to HRC is not protected by ACP, but if the judge required that immediate disclosure it would be wrong.

The judge rather gratuitously ordered a party to immediately disclose the identity of his client, in a courtroom packed with reporters, where the obvious result would be immediate suggestions of guilt by association (see rumps post). I ask you, why was that necessary?

Oh, and the judge was appointed by clinton for AG back in the day, so the gratuitous behavior only stinks that much more, and suggests bias. Wait till trump hears I can see the tweet now.

Rumpole said...

10:33-yes I am saying that the communication with a lawyer raises in the public's perception that the individual is speaking with that lawyer for help in the specialty they practice.

Do you think it would have a negative impact on a financial advisor's business if it was publicized that she had consulted with a Bankruptcy lawyer?

Do you think it would hurt a therapist's reputation if he was known to have hired a lawyer who defends people in domestic violence complaints?

I could go on and on. It doesn't raise a legal presumption. It does raise a natural presumption in the minds of many people.

Would any single person want it disclosed that they frequented an clinic that treats HIV or sexually transmitted diseased? Would a politician want it disclosed they see a psychiatrist? None of those things are disqualifying events in any manner. But they would be detrimental to the person whose identity is being disclosed. Thus my point.

quod erat demonstrandum (QED)

CAPTAIN JUSTICE said...

The Captain Reports:

from the DBR's Samantha Joseph:

Miami-Dade Circuit Judge Sarah Zabel has resigned amid an investigation by the state Judicial Qualifications Commission, which examines allegations of misconduct by state jurists. An undated letter to Gov. Rick Scott lists May 31 as the judge’s last on the bench.

“It has been an honor for me to serve the people of Miami-Dade County these past nearly 16 years,” Zabel said in a statement Wednesday to the Daily Business Review. “Although I will miss seeing my colleagues and the families who come before me every day, I am looking forward to starting a new season in my legal career. … I will continue to make a difference for our community. This is the right time for me.”

Zabel leaves office months after Miami-Dade State Attorney’s Public Corruption Task Force charged her husband with four felonies, but declined to prosecute her over a land deal that cost an investor $150,000, according to a close-out memo issued by prosecutors. Her resignation from the bench ends the JQC investigation. But as an attorney, Zabel could still be subject to disciplinary proceedings by the Florida Bar.

“Judge Zabel is one of the truest public servants we’ve had in Miami,” the judge’s lawyer, Markus/Moss criminal defense attorney A. Margot Moss, said Wednesday. ”She will be greatly missed on the bench.”

The close-out memo shows the State Attorney’s Office began investigating Zabel in 2014 when it uncovered documents showing multiple money order and cashier’s checks purchased in the judge’s name.

Investigators say the buyer made the purchases minutes apart on the same day, but at different locations, and later used the money orders and checks to pay Zabel’s American Express and Discover credit cards. They say Zabel’s husband, former North Miami Beach Mayor Myron Rosner, provided a voluntary sworn statement in which he said the money came from a Canadian inheritance.

But prosecutors allege the money came from an investment into Retail 135 LLC, a company that listed the judge as a managing member and sold shares to investor David Rosenbaum for $150,000.

Retail 135 was supposed to purchase 2.2 acres of vacant land for a commercial real estate project, but investigators say its bank account had only $350 less than five months after Rosenbaum’s investment. “Both Zabel and Rosner went to TD Bank to open the corporate account for Retail 135 LLC. The bank representative who opened the account verififed Zabel’s identity using her driver’s license, and wrote Zabel’s number on the application,” Assistant State Attorney Luis Perez-Medina wrote in the memo closing the criminal investigation. “She also had both Rosner and Zabel sign the deposit slip for the $150,000.”

But the judge provided a sworn affidavit denying any knowledge of Rosenbaum’s investment, and said she “did not remember going to TD Bank to open the Retail 135 bank account,” according to prosecutors. The State Attorney’s Office charged Rosner with securities fraud, grand theft, securities sale by an unregistered dealer and sale of an unregistered security, but brought no criminal charges against Zabel.

“The investigation of Zabel was closed without arrest, since the state would have difficulty providing that she participated or aided in the sale of the security to Dr. Rosenbaum, or that she had knowledge of what Rosner was going to do with the money after it was deposited in Retail 135 LLC,” Perez-Medina wrote.

Anonymous said...

Hey Rump! There is no collusion between Trump, Cohen and Hannity just as there was no collusion between Trump, his campaign and the Russians.

Anonymous said...

judge was appointed by reagan. clinton nominated her for ag, but nannygate crushed nomination.

but never let the facts interfere with a rant

Anonymous said...

Perez Medina is dying to get on the bench. He thinks, wrongly, the way to do that is to give a pass to a criminal. What a travesty, that he recommended declining charges. His decision shows that he is unqualified for the bench.

What a punk.

Anonymous said...

I’ll take hannity over lemon any day. CNN is fake news. Fox is fair y balanced.

Next you’ll be writing about the integrity of the huffington posit...

MAGA

Anonymous said...

Zabel may have been a good judge, I never operated before her. I do remember when she was a criminal defense lawyer and she had not the slightest clue what she was doing nor did she have an ounce of street smarts to guide her. She is lucky that she had a fine lawyer.

Anonymous said...

Some Democrats have a slanted point of view and are not trained as lawyers. This is what they see and think: Fox has an agenda. Trump has an agenda. Fox and Trump use each other to advance their agenda. They coordinate through Cohen, and speak as with one voice. Might be true. Might exceed legal bounds.

Might be a "nothing burger."

Anonymous said...

Judge Wood was appointed to the bench by Reagan.

JSL said...

"The general rule at common law and in the federal courts has been that the identity of a client and the payment of attorney fees are merely underlying facts of an attorney-client relationship, not confidential communications contemplated as privileged under the common law or the Code. However, that general rule is subject to various exceptions, most notably the so-called "last-link" exception... This exception, recognized even in jurisdictions without a statute such as Florida's, applies where the identity of the client, if disclosed, would supply the last link of incriminating evidence in an existing chain and would likely lead to the filing of criminal charges. In situations contemplated by the last-link exception, the client's identity and matters relating to fees are considered confidential communications."

Corry v. Meggs, 498 So. 2d 508, 511 (Fla. 1st DCA 1986) (internal citations omitted)

see also Solidda Grp., S.A. v. Sharp Elecs. Corp., No. 12-24469-CIV-DIMITROULEAS/S, 2013 U.S. Dist. LEXIS 200188, at *29 (S.D. Fla. Mar. 18, 2013) ("The general rule at common law and in the federal courts is that the identity of a client is not considered a confidential communication. However, under certain circumstances, even at common law, an attorney is obligated to conceal not only his communications with a client but also the client's identity." citing Frank v. Tomlinson, 351 F.2d 384 (5th Cir. 1965); American Can Co. v. Citrus Feed Co. 436 F.2d 1125 (5th Cir. 1971).")

Anonymous said...

Please take off the Black item to the right. He has not won a case in years without his clients bribing the jurors.

Fake Sir Kenny said...

Thank You, Thank You, ex-Miami Beach Commissioner Michael Grieco for your frequent Miami Beach municipal traffic reports you post on FB.

I just don't know how I'd get to my South Pointe condo without you.

Anonymous said...

Will Sir Kenneth, a frequent dinning companion of Judge Kimba Wood at Daniel, Balthazar, and La Grenouille in Manhattan be appointed the Special Master in the case of the century?

Enquiring Minds want to know.

Anonymous said...

OMG GOTTA CLICK ON THE FAKE SIR KENNY LINK
well done sir or madam. Very well done. I've been laughing for several minutes.

Anonymous said...

10:41 pm,

You’re slamming an ASA for making a filing decision? Do you know as much about the investigation? Isn’t the standard “ does he believe he can get a conviction? Wouldn’t as ASA benefit from taking down a corrupt judge (if it can be proven?). Since a criminal allegation can tear a person’s life apart, shouldn’t there be a certainty before initiated? Since Zabel has a stellar record , does that count for something? With a judge suffering from tunnel vision because their stuck in a court house all day, isn’t that relevant. For anybody that has a significant other that’s an entrepreneur, do you vet that person’s business dealings? Since the husband has been criminally charged, doesn’t that relieve some of the concerns? Since the bulk of this blogs followers are either ASAs or Defense Attorneys, you scare me; if you’re a prosecutor you seem too quick to the trigger, if a defense attorney, your views are wholly inconsistent with the profession. There’s a reason why “ Monday morning quarterback” is a derogatory term. From the limited information I’ve seen, the resignation is indicative of ethics issues, avoidance of sworn testimony, JQC inquiry, civil action etc. However, a criminal case, which has a substantial burden of proof, should be carefully analyzed. It’s easy to have a “ The fix is in” mentality but for all of us familiar with the criminal justice system “ with great power comes great responsibility” is also applicable. With her husband going down, professional resignation and other consequences, I don’t see her being victorious. When I go to work and bring home the bacon, my wife has no idea what I’m doing, how is this different? With due respect to the judiciary , many have no private sector experiences and are naive about finance, economics and business. I think you’re being too harsh on an issue that the ASA probably has a lot more information than the rest of us. And to call him a punk? You don’t agree with his professional discretion so you make it personal. Luis has been in that office a long time and I don’t remember his name coming up as a bad prosecutor. Rumpole, why allow a post that is a personal attack? I don’t claim I’m fully informed on all the facts but, if “knowledge” is at issue, why wouldn’t that be fair game for a screening ASA to contemplate? Seems like too extreme of a criticism for Zabel and Luis who have substantial resumes.

Anonymous said...

I've given some more thought to the definition of "partisan" in the context of all things Trump. One of your readers said that just because the investigators were all Republicans did not mean they weren't partisan. I think that is a fair point.

I think, in the present political climate, partisanship is like sports team loyalty some of your readers are team Trump. Some of your readers are team anti-Trump. That's why we now have prominent Republicans (outside Congress) rooting for the anti-Trump team. Team Trump has sports paraphernalia -- ball caps, slogans, rallies. Team anti-Trump has t-shirts and marches.

When we have loyalty to a sports team, it can be blind. We root for them no matter the odds, like belief in corporeal resurrection. I don't intend to insult readers of faith. I admire faith, its persistence in the face of persecution let alone odds. When you have a team, you wear its t-shirts, its ball caps, you never miss a game, the next win is right around the corner, you won't bet against your team, even when you know it will cost you. You're willing to fight people who diss your team. You can't even understand let alone like them. Team loyalists are fanatics. That's where the word "fan" comes from.

Fans are, by definition, impervious to countervailing narratives. I am team anti-Trump. Because fandom in this context is far more consequential than losing a bet, I have to try harder to open my eyes and ears to team Trump. I am reflexively disposed to dislike anything and everything he does. That is on me.

It would be great, at least in the safe harbor of anonymous blog posts, for fans of both teams to stop rooting and start talking sensibly about the real strengths and weaknesses of our teams. MAGA is not sensible talk. Neither is DICTATOR. Although politics can be played like a contact sport, it shouldn't be.

This is not a game. Let's take off our ball caps here.





Anonymous said...

As Caesars wife, Hannity is beyond reproach. However, I think 309 is right. Cohen requested relief for his clients whose files or videos or what have you were taken by the feds. Which means Caesars wife had a file or a video or some "fucking" thing lying around Cohens office. I agree that normally the identity of clients is covered by the privilege but here the lawyer went to court to get something for someone. The lawyer says its a client the client says he is just a friend. In any event, the courts are public forums and people who are seeking benefits cannot do it secretly. I'm sure Mr. Cohen isn't seeking to bestow rights for acquaintances or clients who had nothing of theirs taken by the feds. Say what you want about Caesar and his wife but you got to give them credit for exploding the envelope of political and now legal scandals.