Attorney Nicholas Somberg

This case is a throwback to the COVID days. An attorney, piqued that he was disallowed from posting a screenshot from one of his state district court proceedings in the Zoom era, filed a federal lawsuit claiming violation of his first amendment rights. 

The lawyer, Nicholas Somberg, posted the picture on his Facebook page and cast some shade on the assistant prosecutor with whom he was working in the criminal case. For their part, the prosecutor's office took great offense, and sought an order for the lawyer to show cause, asserting that photographing any of the court proceedings violated the rules of zoom court. 

In May of 2020, at the very dawn of the zoom court era, the court issued a policy whereby:

• No one may use a portable electronic device to take photographs or for audio or video recording, broadcasting, or live streaming unless the use is specifically allowed by the judge presiding over that courtroom through a written order; and 

• In areas of the courthouse outside the courtroom, no one may photograph, record, broadcast, or live stream an individual without their express prior consent. 

Although the district court did not grant the prosecutor's criminal contempt charge, it was "chagrined and troubled by the allegations." The prosecutor's office elected not to appeal the dismissal of its contempt petition. 

Somberg literally created a federal case out of his perceived snub a few weeks later when he alleged violation of his first amendment:

right to photograph, screenshot, audio/video record, broadcast, report, distribute, share, and publish photographic, audio and video recordings of public live-streamed Michigan court proceedings without threat of or an actual prosecution...

Attorney Somberg further alleged that he would seek to exercise his right to make such recordings in the future and that he does not wish to be subjected to fines or the contempt of court when doing so. 

After a few years of procedural maneuvers related to summary judgment and an interlocutory appeal to the Sixth Circuit Court of Appeals, the prosecutor, on behalf of the State of Michigan, filed a motion for summary judment which was ultimately granted by Judge Gershwin Drain.

While recognizing that the public, and members of the bar, certainly have the right to access the courts of our state, this access, "does not require an unfettered access to government information." The federal court agreed with the prosecutor that courts constitute non-public forums; the zoom court rules are content-neutral; and the prohibition of recordings is a reasonable method for assuring the proper order and decorum in the court. 

Recognizing that the plaintiff-lawyer's claim was a "right to access" claim as opposed to a "freedom of expression" claim, it granted the State of Michigan's motion and dismissed the case. Here is a link to the court's entire opinion that was issued in September. 

Oakland County, where this case arose, has an interesting history regarding the use of recorded court proceedings. In the old days [i.e. prior to 2010], attorneys could order DVDs of court proceedings for $25 dollars per disc. That came to a screeching halt when one of the judges became the subject of an edited montage produced and posted to the Internet by one of our former clients. 

The client, having lost legal custody of his two children, went through a platoon of lawyers, and ended up representing himself in various post-divorce custody and parenting motions. He was irreparably disgruntled by the family court system and decided to take matters into his own hands. 

His solution was to sit through various motion calls and hearings of the targeted family court judge. Next, he ordered the DVDs for those hearings. He utilized his significant technical media skills to lampoon the judge in a one minute montage hatchet job. 

When the targeted judge became aware of the litigant's unflattering roast, he successfully and permanently changed the court's policy of access to court proceedings. Now, litigants and their attorneys are monitored when they review court hearings. They must agree not to record the recordings and have to come to the court administrator's office to view recorded proceedings. 

So much for obtaining DVDs of legal proceedings and taking them back to your office at your leisure. Prior to the change, our law firm took advantage of obtaining the DVDs and posted some examples of our representation in court to our web site. Here is a link to those videos.

Recently, former president Donald Trump's legal team has sought to have television cameras introduced into his federal court proceedings in the election interference federa; case in Washington DC. That was a flat-out "No", based on the long tradition of no camera access to federal court proceedings. 

Again, these are "right to access" questions as opposed to "freedom of expression" issues. Most state court proceedings are recorded and the public has limited access to view recordings of the actual proceedings, as they occurred. In federal court, the public, and the legal professionals alike, are limited to written transcripts. 

Post #634

Clarkston Legal

Normally the attorney-client work product privilege is sacrosanct. Clients depend on this principle when discussing sensitive matters with their legal counsel.

Ethically, attorneys cannot divulge communications with their clients; nor can they disclose their work product. Recently, however, one of former President Trump's lawyers was compelled by a federal judge to turn over his detailed recorded statements and notes to Special Counsel Jack Smith.

The basis of this ruling is the crime-fraud exception to the attorney-client privilege. This exception allows prosecutors to pierce the attorney client privilege if they believe that the tendered legal advice was subsequently used in furtherance of a crime. 

In Trump's case, prosecutors asserted that the former president deliberately misled his lawyer about the specific location of subpoenaed classified documents at Trump's Mar-a-Lago residence. The lawyer, M. Evan Corcoran, recorded his recollections of meetings with Trump concerning the documents. 

Corcoran undertook a search at Trump's seaside residence in advance of the execution of a Justice Department subpoena seeking the return of classified documents. His recorded recollections of his initial meeting with Trump and his private document search of Mar-a-Lago, when transcribed, ran to dozens of pages.

According to a report in the NYT from last summer, the transcript of Corcoran's unusually detailed recollections factored heavily in the Special Counsel's decision to bring an indictment against former President Trump in the classified documents case. Corcoran's notes could eventually make their way into Trump's trial as evidence. 

Talk about bulit-in appellate issues. Trump's legal team has correctly characterized the attorney-client privilege as one of the most fundamental principles of our legal system. Trump's lawyers, like in all of his other cases, have accused the Justice Department of trying to deny Trump his basic constitutional rights in order to obtain what they describe as "politically motivated" criminal convictions. 

One of the details contained in attorney Corcoran's notes describes how Mr. Trump asked the lawyer whether he had a duty to comply with the subpoena at all; he was advised by counsel that he did have to comply with the subpoena. 

In addition to submitting his notes, Corcoran also testified before the federal grand jury in the classified documents case. Corcoran's testimony indicated that Mar-a-Lago employees directed him to a specific storage locker where all of the documents were allegedly located. 

Based on this direction, Corcoran retrieved and turned over to the Justice Department about three dozen documents. He indicated in his correspondence covering the transmission of the classified documents that the enclosed documents were the only ones he located pursuant to his due diligence at Mar-a-Lago.

Corcoran's notes do not suggest that Mr. Trump or the Mir-a-Lago employees misled him or warded him off from searching certain areas within the residence. The notes apparently do state, however, that no one told him to look elsewhere; in places other than the storage room to which he was directed. 

Now, with hindsight, the Justice Department, and everyone else in the world, knows that Corcoran's search was incomplete to the extent that a subsequent Justice Department search turned up an entire additional trove of documents: hence the invocation of the so-called "crime fraud" exception to the attorney-client privilege. 

As Special Counsel Smith's case careens toward trial, the facts surrounding who had access to the storage room, and who moved boxes into and out of that room are the central issues in the case. The Justice Department's theory is that Trump's team treated attorney Corcoran as an unwitting accomplice who officially interacted with the government's requests for the return of all the classified documents. 

The federal judge's memorandum ordering Corcoran to produce his notes and to appear before the grand jury describe Trump's prior gamesmanship and "misdirection" as the central basis for piercing the veil of his attorney-client privilege. 

We here at Clarkston Legal will continue to monitor this interesting case. Our scrutiny of the trial will be honed in on whether Mr. Corcoran testifies at the trial and whether the transcript of the lawyer's recorded notes are published to the jury for their consideration. 

Post #633

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