Cohen’s Lawyer Says Privilege at Issue in Fake Citation Response

Michael Cohen‘s lawyer has hired his own counsel to handle his response to a Dec. 12 order to demonstrate why he shouldn’t be held in contempt for filing a motion with citations to three court cases that a federal district court said didn’t exist.

Counsel for Cohen’s lawyer, David M. Schwartz of Gerstman Schwartz LLP, filed a response to the US District Court for the Southern District of New York’s order to show cause, saying that Schwartz’s response may require disclosure of attorney-client privileged communications under the New York Rules of Professional Conduct.

The Dec. 15 filing was accompanied by a letter motion to seal his response until the court resolves “whether Mr. Schwartz can reveal the information stated in his affirmation without violating the attorney-client privilege.”

Judge Jesse M. Furman issued the order to show cause after Schwartz filed a motion for early termination of Cohen’s supervised release that cited to three either irrelevant or nonexistent cases.

One of the citations—supposedly to a Second Circuit case—refers to a Fourth Circuit decision that has nothing to do with supervised release. Another citation corresponds to a decision of the Board of Veterans Appeals. The third cite, meanwhile, “appears to correspond to nothing at all,” Furman said in a Dec. 12 order to show cause.

Furman temporarily granted Schwartz’s motion to seal on Monday. The judge also said he was providing the parties more time to respond to the issues Schwartz raised, given the upcoming holidays.

Cohen’s response, if any, should address the substance of Schwartz’s filing, whether Schwartz’s disclosures violate the attorney-client privilege, and whether the filings should remain under seal or be docketed, either in redacted or unredacted form.

If Cohen doesn’t respond by Dec. 28, Schwartz’s submission will be unsealed without additional notice to the parties.

Schwartz is represented by Aidala, Bertuna & Kamins PC

The case is United States v. Cohen, S.D.N.Y., No. 1:18-cr-00602, 12/18/23.