(04-11-2018 05:12 PM)tanqtonic Wrote:  Some colleagues and I were talking about Cohen and the privilege issue. Can someone spot the difference for me:

a) case 1 : A high ranking cabinet member (call her Clintock) has a rogue server and handles classified communications through it in an 'extremely careless manner'. The access and operation of the server touches her personal attorney, lets call him Mills Sheryl. The attorney throws out the privilege issue to avoid being questioned about his scrubbing of, lets say, 30,000 emails. The FBI in no way, shape, or form tries to break privilege, even with the statement that Mills was an active participant.

To begin with, Mills should have been disqualified from representing Clintock in connection with the e-mail investigation under attorney ethics rules. Both were both subjects of the FBI’s investigation — suspected to be a coconspirator Clintock. When a lawyer is a participant in the facts under investigation, she is burdened by intractable conflicts of interest — e.g., the client is entitled to objective advice about the merits of cooperating with the prosecutor, but how can the lawyer provide such advice if the client’s cooperation could subject the lawyer to prosecution? Consequently, a lawyer’s participation in the facts under investigation triggers the ethical rule against providing representation when doing so would create the appearance of impropriety.

In the case of Mills it isn’t just an appearance. This is textbook impropriety. And ignored by the FBI in its kid gloves approach to the attorney.

b) In the second case (Cohen) we have an appearance of just the opposite type of treatment of a subject/attorney. In fact, the attorney was subject to an action typically only reserved for consigliere types.

Now tell me schoolchildren, where are the differences located? We spent a good hour over coffee trying to find some 'real' legal reason, but were unable. Have to love the 'equal' treatment under the law in these two case.....

The real reason is the politics.

I presume by colleagues you mean other lawyers. Did any of them refer you to the NYT as a legal reference?