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Robert Costello speaks at a press conference recorded by The AP; Michael Cohen appears outside of court. (Image via Eduardo Munoz Alvarez at AFP via Getty Images)
This is an opinion piece. The views expressed in the article below are those of just the author.
If Manhattan district attorney Alvin Bragg decides against indicting Donald Trump for the Stormy Daniels payoff, it will be at least in part thanks to the hatchet job attorney Robert Costello did on star prosecution witness Michael Cohen. Or so says Alan Dershowitz.
In a recent interview with Fox News host Maria Bartiromo, the acclaimed former Harvard law professor opined that Costello’s testimony before the grand jury “has proved that the main witness is going to be a perjuring liar on the witness stand.” Thus, according to Dershowitz, if Bragg “uses Cohen as a witness, he could actually lose his bar license. It’s unethical to put a witness on the stand who you know is lying, and he has to know that Cohen will be lying.”
Dershowitz is right that there is a lurking ethics issue, but it is Costello’s problem, not Bragg’s.
As Trump’s fixer, Cohen was an admitted conduit for the hush money to Daniels, for which he has already pled guilty and served time. He has explained for years that the arrangement was at Trump’s behest, and Costello’s low opinion of Cohen’s probity does not discredit his current testimony. As a veteran Criminal Law teacher, Dershowitz surely knows that witnesses disagree all the time – otherwise, there would be no purpose to holding trials – and prosecutors routinely make assessments about relative credibility.
In any case, grand jury testimony is secret in New York, so Dershowitz cannot know precisely what Costello claimed when he testified at the behest of Trump’s lawyers. Leaving the courthouse, Costello told reporters, “Michael Cohen decided ‘on his own’—that’s what he told us—to see if he could take care of this.” But even that does not exonerate Trump, much less prove that Cohen has been lying all along.
In fact, it is Costello who is likely to be in trouble for violating client confidences. As reported by The Daily Beast, Costello was more than a brief legal advisor to Cohen. Although Cohen ultimately declined to sign a formal retention agreement, Costello and his firm, along with Rudy Giuliani, repeatedly tried to represent Cohen in 2018. They met in person and exchanged numerous emails, discussing the possibility of a “back channel” of communication to Trump and at one point even suggesting the possibility of a pardon. Former special counsel Robert Mueller’s report quotes Costello’s email to Cohen: “Sleep well tonight[], you have friends in high places.”
One of Costello’s law partners wrote to Cohen, “Bob and I would love the opportunity to be part of and work with your team as we believe we can help you on many levels.” Costello himself told his partners, “we are officially part of Cohen’s team. Have been authorized to reach out to various players,” later assuring them that his emails with Cohen “are safe and privileged.”
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Even in the absence of a retainer or a fee, all of this makes Cohen, in the language of the Rule 1.18 of the New York Rules of Professional Conduct, a person who consults with a lawyer about the possibility of forming a client-lawyer relationship, and thus a “prospective client.” Crucially, lawyers owe prospective clients a full duty of confidentiality. As the applicable rule puts it, “Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information.”
That certainly seems to cover Costello’s revelation to reporters, and presumably in the grand jury room, about Cohen’s alleged admission that he initiated the payoff on his own. And it also covers Costello’s repeated denigration of Cohen’s character, as when he said “this guy couldn’t tell the truth if you put a gun to his head.”
Rule 1.6 prohibits lawyers from using confidential information “to the disadvantage of a client or for the advantage of the lawyer or a third person.” Moreover, “confidential information” is not limited to attorney-client conversations, but extends to “all information . . . relating to the representation” that is “likely to be embarrassing or detrimental to the client if disclosed.”
Costello has claimed that Cohen waived his privilege in 2019. Maybe so, but he has not provided the circumstances. Cohen has denied making any such waiver, which in any case would be narrowly construed, as open-ended waivers are disfavored in the law.
Cohen has repeatedly said the Costello was never his lawyer, which seems true but irrelevant. He was unquestionably a prospective client, and therefore entitled to the full protection of the confidentiality rules.
When it comes to ethics issues, it is Robert Costello who has questions to answer, not Alvin Bragg.
Steven Lubet is Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law. He is the author of The Trials of Rasmea Odeh: How a Palestinian Guerrilla Gained and Lost U.S. Citizenship, and many other books.
This is an opinion piece. The views expressed in this article are those of just the author.
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