Is it normal, or at least precedented, to require an attorney to publicly divulge his/her client list in a crime-fraud prosecution?

Question

As has been widely reported, for instance here, Judge Kimba Wood recently required Michael Cohen to reveal his client list in open court during the legal proceedings surrounding his prosecution via the crime-fraud exception to attorney-client privilege. Notably, this has caused significant embarrassment for Sean Hannity, an otherwise secret member of this client list.

So far as I am aware Wood's ruling is perfectly consistent with the law: attorney-client privilege protects communication between a client and his or her lawyer but it does not protect the fact that such communication occurred. Nevertheless Wood could have chosen to require Cohen to reveal his client list to prosecutors privately, and I am wondering how much precedent there is for instead requiring that the disclosure occur publicly.

Are there other examples where an attorney prosecuted under the crime-fraud exception to attorney-client privilege was required to reveal his or her client list in open court?

I can't claim I am personally concerned a great deal for Hannity's reputation, but the case has much broader significance and I am trying to understand the context as thoroughly as possible.

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As pointed out in the comments, this question is quite similar to another question. The answers to that question did not answer mine because I was already convinced of the legal justification for publicizing the client list and I am specifically interested in precedents / case studies - the current answer to this question is exactly what I had in mind. But the similarities are undeniable and I am new to this forum, so I leave the decision to mark this as a duplicate to the existing community.

Answer 1

This sort of thing is very common.

Particularly in the tax context, the IRS seeks to compel lawyers to reveal their clients all the time, and the courts are pretty much all in agreement that attorney-client privilege generally does not protect the identity of a client. For example:

• United States v. Goldberger & Dubin, P.C., 935 F.2d 501, 505 (2d Cir. 1991)
• United States v. Servin, No. 17-1371 (3d Cir. Feb. 1, 2018)
• Matter of Grand Jury Empanelled Feb. 14, 1978, 603 F.2d 469 (3d Cir. 1979)
• In re Grand Jury Proceedings, 680 F.2d 1026 (5th Cir. 1982)
• In re Grand Jury Investigation No. 83-2-35, 723 F.2d 447 (6th Cir. 1983)
• In re Grand Jury Witness (Salas), 695 F.2d 359, 361 (9th Cir.1982)

More typically, the disclosure happens in front of the grand jury or in response to a subpoena, but it also can happen in open court like it did with Cohen.

That happened in the second Third Circuit case above, where federal officials were investigating the source of 42,000 pounds of pot they'd found on a boat off the coast of New Jersey.

There were disputes as to who owned the ship -- and might therefore be liable for the drugs -- so the DOJ needed to nail that down. There was some reason to believe that Attorney Markowitz was involved in transactions that would shed light on the ownership, so they subpoenaed Markowitz to appear before the grand jury. He showed up and refused to answer basically anything or produce any records, so the prosecutors asked a judge for a ruling on whether he was permitted to withhold his clients' identities based on attorney-client privilege.

This is where the case starts to look sort of like the Cohen situation. The attorney was asserting privilege, and the judge said he would need to review the records in camera to see if the privilege applied. But he couldn't say if attorney-client privilege applies if he didn't know who the clients were, so he ordered him to identify his clients. He refused, so the judge told him to take a moment and think about it before he held him in contempt. Unlike Cohen's attorneys, the guy still refused, so the judge held him in contempt and ordered him to jail.

On appeal, the Third Circuit agreed that attorney-client privilege generally does not protect the identity of a client. There are exceptions when there's already enough information known about the client that revealing the identity would expose them to criminal prosecution, but that was not the case here.

The court still reversed the contempt finding, holding that Markowitz had a Fifth Amendment right not to identify the clients because doing so might expose him to criminal prosecution, but that element doesn't seem to exist in the Cohen situation. (Interesting side-note: The government was represented in this case by a 29-year-old Samuel Alito.)

The weird thing about this, to me, is that the courts have a procedure to avoid making the disclosure public: "A well recognized means for an attorney to demonstrate the existence of an exception to the general rule, while simultaneously preserving confidentiality of the identity of his client, is to move the court for an in camera ex parte hearing." In re Grand Jury Investigation No. 83-2-35, 723 F.2d 447, 454 (6th Cir. 1983).

Why Cohen's guys didn't go that route is beyond me.