As the Russian election interference investigation progresses full speed under the special prosecutor Mueller, President Trump's personal lawyer, Michael Cohen hired his own attorney. NBC News reported this new development on Friday and according to Katy Tur, Cohen has hired Washington D.C. attorney Stephen M. Ryan.
Mr. Ryan is a senior partner at McDermott, Will & Emery and the head of the Firm’s Government Strategies practice. Formerly, Mr. Ryan was the general counsel to the U.S. Senate Committee on Governmental Affairs and once served as an Assistant U.S. Attorney in Washington D.C., prosecuting criminal cases.
Mr. Ryan’s current practice provides lobbying, litigation, and counseling services to the information technology community, which makes him an interesting pick for Mr. Cohen, who is set to testify before the House Intelligence Committee on September 5, 2017.
Many on Twitter are starting to speculate about what it might mean that President Trump’s personal attorney retained his own personal attorney. Particularly, people are interested in how such representation might affect the attorney-client privilege between President Trump and Mr. Cohen.
The American Bar Association has a set of Model Rules of Professional Conduct that all attorneys must abide by. These rules govern a variety of situations that occur in practice, including Rule 1.6–Confidentiality, the rule governing the attorney-client privilege.
The attorney-client privilege only protects actual communications between the attorney and the client and only extends to information exchanged for the purpose of obtaining legal representation. The information is not protected if it is available from another source and it cannot be placed under a cloak of protection simply because it has been told to the attorney.
Under normal conditions the confidential information is to remain confidential throughout the representation, and thereafter, even after the death of the client. However, there are a limited number of circumstances where an attorney is permitted to breach confidentiality. These exemptions vary by jurisdiction.
A common exemption is the “crime-fraud exception” which allows disclosure of communications by the client if the client is attempting to use the attorney’s services to commit or cover up a crime or a fraud. Also, most jurisdictions permit disclosures to prevent death or substantial bodily harm. Other exceptions include disclosures authorized by law, impliedly authorized to effectuate client representation, or disclosure by the attorney for self-defense against a claim by the client.
But by far the most common exception is to seek ethical advice about the attorney’s own compliance with the Professional Rules of Conduct. It is this last exception that is the most likely reason that Mr. Cohen retained his own lawyer. When Mr. Cohen testifies in any of the various Russian interference investigations, he wants to ensure he does not breach his ethical obligations to President Trump, regarding attorney-client privilege, so it makes sense he would retain his own counsel to advise him on such matters.
The ethical consideration concerning compliance with the Model Rules, and specifically the attorney-client privilege, is what makes the selection of Mr. Ryan such a curious pick. Mr. Ryan is not an expert in ethical matters or even investigations, but he does appear to be an experienced prosecutor and he is most certainly an expert in the field of cyber security.
Mr. Cohen has been a close friend to President Trump for over a decade and has spent his recent career as either a personal advisor to Mr. Trump or as counsel to a Trump related entity. It is certain that over the course of his relationship with President Trump, Mr. Cohen has been exposed to a variety of matters – so what exposure makes cyber security his primary concern when hiring his own counsel? I guess we won’t know until September 5, 2017.
The full text of ABA Rule 1.6 can be found here: