Norm Murdock [00:23:18]:

And now he wants to testify or he's available to testify, has been making public statements as has Cohen, that his former client, Stormy Daniels, is lying and has a hidden agenda. And and, he believes that, you know, she's she never had an affair with Trump and that it was just a a grab for publicity. So it brings up the question mainly directed at Steve because he's the attorney here on the panel. To what extent and under what conditions can an attorney testify against a former client? Because they are both doing that. Cohen, his former client being Trump, Evanati, his former client being, Stephanie Clifford, AKA Stormy Daniels.

Steve Palmer [00:24:13]:

Yeah. So this is a good is a like so many things in law, it all depends. You know, there's so many layers and levels and and nuances to the analysis. But let me just go go big picture here. We'll go mile high. There's something called the attorney client privilege that most people have heard of but don't quite understand. And the attorney client privilege applies when somebody tells me something. I'm the attorney, and I have a client who tells me something even before I'm actually paid or retained.

Steve Palmer [00:24:35]:

So every now and then, like, there's the movie with, Susan Sarandon and the kid where, he gives her a dollar or a nickel or something. So I'm your lawyer. It doesn't even matter. Somebody calls me even looking for a prospective attorney. So, hey, I want you I I wanna interview you to see if I want you to be my lawyer. The things they tell me are still privileged if it's done, in a very specific way. And what that means is, there's nobody else as part of the conversation. So if my client is telling me something and either I'm the only person there or the only other people there are part of my team, that is privileged, things that are said or written.

Steve Palmer [00:25:11]:

K? And I can't repeat those things. Now here's what's interesting. So if a client comes in my office and they say, hey, look, can my mom come in or my dad come into the meeting? They're gonna they're gonna be paying the bill. I will say, no. And the mom and dad get upset because they're like, we're paying. We should be there.

Brett Johnson [00:25:28]:

It's,

Steve Palmer [00:25:29]:

like, yeah, I know you're paying, and you should be there. But if you're in the room and the thing and I'm told something, it's not privileged anymore. So what protects that would be the next question, and that's part 2. And part 2 is something called a secret or a confidence. So things that privileges things that are said or written, confidences are things that I learned during the course and scope of my investigation or representation of the case. Could be things that, Norm, you tell me, even though I'm representing Brett, but you're a witness, so you tell me these things in theory, those are protected by attorney client confidences, and it's a broader, it's got a broader net. Then you would ask, how on earth can these lawyers possibly testify? Or when can I be asked what my client said or what I learned? Well, the one easy one is if it helps my client, so I'm doing it in as a result of representing my client. So I would if I interview Norm and and I'm representing Brett and Norm has very good things to say, well, I'm gonna pick up the phone and say, hey, mister prosecutor, guess what? I got me a great witness in Norm.

Steve Palmer [00:26:27]:

Forget about all his blogs and forget about everything he said at Common Sense Ohio. He's still a great witness. And and, I can share that. Even though I learned it, I can share it because it helps my client. Another exception and the one that we're talking about here is called the crime fraud exception. And, you know, we can be so here's what the US Supreme Court says about it. It is the purpose of the crime fraud exception to the attorney client privilege to assure that the, quote, seal of secrecy, end quote, between lawyer and client does not extend to communications made for the purpose of getting advice for the commission of a fraud or a crime. So, you know, if if Brett's telling me that a bunch of fraudulent stuff, and he's giving me information that he's gonna use, to go commit a future crime, then I can start to bust through the attorney client privilege.

Steve Palmer [00:27:10]:

Then you get into this other nuance about whether I have to or whether I can. Alright. So, you know, this comes up a lot in in situations where Brett tells me, yes, I killed a child, and I buried the child out in, the bean field there on State Route 23 heading down to Circleville. And then, you know, Brett is arrested later, and he's convicted, and, and maybe a bunch of other crimes. This is a classic movie scenario. And the and the grieving parents just wanna know where their kid is. And they start interviewing me, and, I can't tell them. Right? Because it's already done.

Steve Palmer [00:27:48]:

Right? It's not like, I cannot if I want even if I wanted to, I couldn't. Now it's a different scenario where if Brett says, yeah, the kid is buried underground, still alive. I might there there there's probably a way around the rules that would permit me to do it, but maybe not require it because that's a crime or a fraud. He's he's he's still committing. So that's how these people are, in theory, getting around this.

Norm Murdock [00:28:12]:

Yeah. Well,

Steve Palmer [00:28:14]:

so for for instance, if Stormy Daniels is is lying and if she's testifying about things that happened that, Avenatti was a part of during the representation and it's fraudulent

Norm Murdock [00:28:24]:

Yeah.

Steve Palmer [00:28:25]:

Then in theory, he can get around the privilege.

Norm Murdock [00:28:27]:

Yeah. Because I I think what he got convicted of was stealing some of the 130,000 that she got paid. And, you know, or some sort of advance on a book she wrote or something. And he took some of her money. So, you know, he's gonna probably wanting to testify not only for vengeance, but, you know, he says because he knows of her attempts to break the law.

Steve Palmer [00:28:56]:

Well, and there's another one too. So if a client refuses to pay me or disputes the fee that I collected, I I can then start divulging things I learned during the course and scope scope my representation. And that's some of that could be going on there too. Okay. There could be a lot of things could be true at once.

Norm Murdock [00:29:11]:

Okay. But generally, I mean, what's upsetting to me about and and you'll notice one is pro Trump, one is anti Trump. So, you know, I I pick those because, you know, it balances out what I'm gonna say. And I'm just, you know, super uncomfortable with the idea that, you know, some it's kind of like, you know, confessing if you're a Catholic to a priest or talking to your doctor about your health situation. You know, it's one of these sacred relationships.

Brett Johnson [00:29:42]:

Mhmm.

Steve Palmer [00:29:43]:

You know?

Norm Murdock [00:29:43]:

And and a derogation of that is it makes me very uncomfortable.

Brett Johnson [00:29:47]:

Well, has a chilling potentially a chilling effect.

Norm Murdock [00:29:49]:

Yeah. Like, I'm not gonna tell my attorney every.

Brett Johnson [00:29:52]:

Right. Because it could back down the road can turn around and bite me in the butt.

Steve Palmer [00:29:57]:

And think about it. This is already a problem, even without this stuff. So if a client comes to me, this happens to me all the time. Clients tell me most of it. But, you know, for ego, for guilt, for even thinking they're trying to steer the ship of the defense a little bit. They they hold something back. Mhmm. And I always tell my clients, I can protect you from everything I know about.

Steve Palmer [00:30:20]:

Or if there's any chance of protecting you, I have to at least know about it. I cannot protect you from things that I don't know about. Right. And, you know, this this comes up a lot where clients don't tell me everything or it comes out, like, in the middle of trial.

Brett Johnson [00:30:33]:

I was gonna say that that's the last thing you want to happen is, like, we don't wanna be surprised in the middle of trial defending you.

Steve Palmer [00:30:38]:

And it has happened to me Wow. Time and time again.

Norm Murdock [00:30:41]:

That's something. A material fact comes up that you could have known about had they been

Steve Palmer [00:30:46]:

Right. In in most transactions. You know, the client's like, well, I figured if I if if I told you that, then then I was gonna be convicted. Well, what do you think was gonna happen if you didn't tell them?

Brett Johnson [00:30:57]:

Well, exactly. Because both sides have the same information other than they have the information and your your client or your your lawyer doesn't have it. Why would you not tell me?

Norm Murdock [00:31:06]:

Right. Yeah.

Steve Palmer [00:31:07]:

And and I always you you know, there there are things there are things that the clients haven't told me, and then maybe it's worked out. Because you never know if they've told you everything.

Norm Murdock [00:31:15]:

Yeah.

Steve Palmer [00:31:15]:

I'd like to think most of the time they have. But usually, I can smoke it out. Usually, I I spend enough time with my client across the table that I can smoke it out because they're you know, the truth has a rhythm to it. And when thing when the rhythm is all of a sudden a little bit off

Norm Murdock [00:31:29]:

Yeah. You

Steve Palmer [00:31:30]:

start to wonder why. If you skip a measure or 2, using the musical analogy Sure. It doesn't quite fit together.