Adjunct Professor Joel Cohen wrote a piece for the New York Law Journal on record-keeping when it comes to privileged conversations between attorneys and their clients.
But, I digress. The real issue is note taking. Now, I suspect that the president was at least partly correct about McGahn–McGahn knew what and who he was dealing with. Accordingly, he wanted his recollections–that is, the “record”–to be precise, especially if he was ever called upon. But remember, in fairness to McGahn, he was a lawyer for the “presidency,” not the president, and creating a record for the White House was indeed a time-honored obligation to the nation, even putting aside his perceived obligation to himself.
Now, it’s not necessary for private lawyers for clients that aren’t corporations to “make a record”–what the client tells them is privileged and the lawyer is obligated to keep it so. And, most lawyers aren’t and shouldn’t be afraid that their clients will turn against them or blame them for something gone wrong–although it certainly does happen: “You never told me there was a favorable settlement offer on the table.” Or, “Why didn’t I know, as you now say I did, that Jimmy [my coconspirator]had a cooperation agreement?” Or, “I never told you that I actually received $200,000 in cash.” Sound the least bit familiar? It should, of course, help (the lawyer) when the lawyer has contemporaneous notes taken by her, or her associate, of the conversation with the client, particularly if it ever hits the fan.
