Judge Andrew Napolitano had some telling advice for Fox News host Sean Hannity over his stated expectation of confidentiality regarding his dealings with President Donald Trump’s personal lawyer Michael Cohen.
“I love him. I’ve worked with him for 20 years. He can’t have it both ways,” the Fox News senior judicial analyst said of attorney-client privilege.
“If he was a client, then his confidential communications to Mr. Cohen are privileged,” Napolitano said. “If Mr. Cohen was never his lawyer, then nothing that he said to Mr. Cohen is privileged.”
But Napolitano said that is not the case.
“I must tell you that that is a myth,” he said. “The attorney-client privilege requires a formal relationship reduced to writing for a specific legal purpose.
Hannity said on his radio show that he expressed the desire for such a relationship.
“I never gave him a retainer. Never paid any fees,” the Fox News host said. “I may have handed him $10 once. I requested attorney-client privilege with him, and assumed our conversations would be confidential, but they have never involved any matter with him and any third party.”
Faulkner asked if anything related to Hannity that may have been obtained during the raid of Cohen’s office can be revealed.
“In my view, yes,” Napolitano said.
Hannity did take to Twitter to say “Cohen has never represented me in any matter. I never retained him, received an invoice, or paid legal fees,” but the contradiction may not matter — he also said the conversations he had were “almost exclusively about real estate” and that they “never involved any matter between me and a third-party.”
Criminal defense attorney Richard Hornsby cited the Supreme Court case, Alexander v. United States, involving a free consultation, to note that payment isn’t required to create an attorney-client relationship.
“Given this legal precedent, courts have continuously held that any communication with an attorney falls under the attorney-client privilege if the communication was intended to be confidential and made for the purpose of securing legal advice,” he explained in a “Law & Crime” piece.
And despite Hannity’s contradiction, Hornsby said Cohen is held to that expectation.
“Unless Hannity formally authorizes Cohen to disclose their confidential communications,” he wrote. “Cohen has both a legal and ethical obligation to assert the attorney-client privilege on Hannity’s behalf and to protect all confidential information he possesses.”
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