M. Evan Corcoran’s Ethical Dilemmas

The words and actions of two particular Trump lawyers have attracted considerable attention because each is the source of evidence against Trump. In the pending New York case, his former lawyer Michael Cohen participated in the conduct that gave rise to the state charges. Cohen has provided information to prosecutors and a grand jury and will almost certainly be a key trial witness for the prosecution.

The federal indictment, pending in U.S. District Court in the Southern District of Florida, alleges that lawyer M. Evan Corcoran participated in the conduct that gave rise to the Espionage Act and obstruction charges Trump faces. Like Cohen, Corcoran has provided information to a grand jury that indicted Trump and may be called as a witness at trial by the prosecution. Following a meeting with Trump concerning a subpoena for classified documents, Corcoran recorded notes about the meeting on his iPhone, which were later transcribed and turned over to the grand jury that indicted Trump. Corcoran also reportedly testified before the grand jury for over three hours. But unlike Cohen, Corcoran continues to be a legal advisor and potential advocate for Trump. In this column, we outline a number of ethical issues arising from Corcoran’s current situation.

In order to grasp the ethical dimensions of his situation, some evidentiary issues need to be addressed.

Attorney-Client Privilege

The most obvious evidentiary issue is attorney-client privilege. Judge Beryl A. Howell of the District of Columbia ruled in a sealed opinion that Corcoran’s notes are exempt from the privilege under the crime-fraud exception and was affirmed by an appellate panel. Her opinion has not yet been made public. Though it seems unlikely, Judge Aileen Cannon, before whom the federal case will be tried, might conceivably arrive at a different conclusion than Judge Howell. For the purposes of this column, we will assume that the crime fraud exception does apply.

Hearsay

Admission of Corcoran’s recorded notes entails two levels of hearsay analysis. There are his recorded statements describing what went on in his meeting with Trump. Then there are any statements he describes Trump or himself making during the meeting. Corcoran’s recorded descriptive statements were made out of court and would be offered at trial for the truth of what they assert—what Mr. Trump said and did when interacting with Corcoran. Statements the recording describes were also made out of court but are unlikely to be offered for the truth of anything asserted. For example, the “plucking motion” Mr. Trump is described as making is a classic example of communicative conduct but is a command rather than an assertion.

A grand jury may hear and consider hearsay in deciding whether or not to return an indictment. The same is not true of a trial jury, unless the prosecution can find a way around the hearsay ban.

Federal Rule of Evidence (FRE) 801(d)(2), dealing with admissions, provides a sure path around any hearsay objections. The recorded notes made by Corcoran, whether the actual recording or a written transcription, constitute vicarious admissions under FRE 801(d)(2)(D) because they would be offered against a party, Trump, and were “made by the party’s agent [Corcoran] . . . on a matter within the scope of that relationship and while it existed.” Any statement made by Mr. Trump, even if offered for its truth, would be a personal admission admissible under FRE 801(d)(2)(A).

Corcoran as a Witness to the Meeting with Trump

Corcoran might be called as a witness at Trump’s trial to testify about what happened between him and Trump on the occasion in question. This would raise a question of attorney-client privilege. But just as his notes describing his interaction with Trump were not privileged, neither would his testimony describing the same interaction. In addition to, or perhaps instead of, his testimony about what transpired, the prosecution might also offer his recorded notes, by playing the actual recording and putting the transcription of that recording into evidence.

Authentication

Introducing the recording would raise an authentication issue. It is possible that Trump’s lawyers will stipulate to the recording’s authenticity to avoid having Corcoran called as a foundational witness. If there is no stipulation, how could the prosecution authenticate the recording and the transcript? Corcoran could be called as a foundational witness to identify and authenticate the recording and transcription. But Corcoran fought giving the notes to the grand jury and still is on the Trump legal team, so he would almost certainly be a hostile witness. He is unlikely to testify falsely because he could be prosecuted or face bar discipline for committing perjury. He may be more inclined to simply refuse to answer the prosecution’s questions about the notes and risk a contempt citation and its consequences for the purpose of staying in Trump’s good graces.

If Corcoran is uncooperative, there are a couple of ways the recorded notes could be authenticated. An expert witness or people familiar with Corcoran’s and Trump’s voices could be used to identify the voices on the recording. The fact that the recorded notes were found on Corcoran’s phone as well as the content of the recording would also be helpful in the authentication process.

What about any prior statements by Corcoran acknowledging the recording as being of him and Trump and describing the notes as relating to his interaction with Trump? He likely made statements about this, maybe in the form of a declaration, before Judge Howell in order to assert attorney-client privilege. It is unclear if he authenticated the recording and notes before the grand jury or if someone else authenticated them for the grand jury using hearsay. If Corcoran were to be uncooperative, he could be severely impeached with such prior inconsistent statements.

Corcoran’s Role as Trump’s Lawyer

Corcoran’s continuing roles as counsel to Trump while at the same time being a source of evidence against him and a potential defendant on charges that are the same or similar to those facing Trump raise a number of interesting ethical issues.

Confidentiality. The duty of confidentiality prevents a lawyer from revealing confidential information or using it to the detriment of a client. Rule 4-1.6(e) of the Florida Rules of Professional Conduct requires a lawyer to take reasonable steps to prevent disclosure of information relating to client representation and to protect confidentiality. This obligation along with the ethical obligation of competence typically requires a lawyer to assert attorney-client privilege. Corcoran fulfilled this obligation when he was subpoenaed before the grand jury. He or Trump’s other lawyers may well reassert attorney-client privilege at the upcoming federal trial. Florida’s Rule 4-1.6(d) requires that when a tribunal orders a lawyer to reveal confidential information, the lawyer “may first exhaust all appellate remedies.” Florida’s Rule 4-1.6(c) has two permissive exceptions to client confidentiality that might come into play if Corcoran is accused of wrongdoing in regard to the federal charges. Subsection (3) allows disclosure “to establish a defense to a criminal charge . . . against the lawyer based on conduct in which the client was involved.” Subsection (4) allows disclosure “to respond to allegations in any proceeding concerning the lawyer’s representation of the client.”

Advocate Witness Rule. If Corcoran were to be called as a witness to testify to his nonprivileged interactions with Trump or to lay a foundation for admission of his recorded notes, the advocate witness rule would prevent him from representing Trump at the federal trial. Corcoran has not entered an appearance in the federal case, and it appears he will not be one of the Trump lawyers at the trial. The advocate witness rule would not, however, prevent him from retaining a position as one of Trump’s advisors operating outside the court room.

Conflict of Interest. Corcoran might eventually be indicted or threatened with indictment on a number of charges. Most obvious would be obstruction for the role he played, as described in the indictment, in dealing with the government’s attempts to retrieve the documents. The indictment alleges that “Trump Attorney 1” reviewed the Trump boxes at Mar-a-Lago to have “Trump Attorney 3” sign a certification as custodian of records that all of the documents were being turned over based on information provided to her. We know that Corcoran is Trump Attorney 1 and Christina Bobb is Trump Attorney 3, and Corcoran was involved in drafting the false document given to the government that said everything had been turned over. Corcoran has admitted that he did not search parts of Mar-a-Lago where dozens of additional classified documents were later discovered. If Corcoran is charged with a crime, conceivably as an accessory to the espionage counts or obstruction of justice, he will have a personal conflict of interest creating a significant risk that his continued representation of Trump would be materially limited by Corcoran’s personal interests. Trump could theoretically give informed written consent, confirmed in writing, to such a personal conflict of interest only if Corcoran reasonably believed he could provide competent representation. In our opinion, if Corcoran were indicted, the conflict would be serious enough that it would not be subject to such a waiver.

Even if Corcoran is not actually charged, his potentially being charged creates a risk of him skewing his advice to Trump about whether and how hard to fight the federal charges. A full trial might be more likely to bring any wrongdoing by Corcoran to public attention and to the attention of prosecutors and bar authorities. While this risk would be high with most other clients, Trump is far less likely than other clients to accept any advice to plead guilty that might be tainted by Corcoran’s self-interest in having the case resolved quietly.

Conclusion

The case against Trump and Corcoran’s role as a likely witness raise a number of interesting evidentiary issues and ethical dilemmas. Their resolution will depend in part on how the prosecution treats Corcoran—whether they call him as a witness, threaten to charge him, or actually charge him. Their resolution will also depend on the role Corcoran may wind up playing in advising Trump about his response to the federal charges.