A client may hire a lawyer, but the lawyer should not “belong” to the client. To
do their jobs, lawyers must remain independent. They have two essential ethical obligations: to maintain a client’s confidences, so long as the client is not trying to get the lawyer to help him commit crime or fraud; and to zealously represent a client, so long as the client’s requests are legal. Zeal has never meant that anything goes. If an attorney has gotten that far, he or she has forgotten that the first duty is to the law.
When Cohen took his oath as a lawyer in New York, he promised to “support the Constitution of the United States, and the Constitution of the state of New York” and to “faithfully discharge the duties” of an attorney and counselor at law. The American Bar Association’s ethical rules specifically provide that “a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.” Trump clearly failed to grasp this principle, implying in a tweet this past week that Cohen, unlike convicted felon Paul Manafort, was not loyal because prosecutors forced him to “break” and admit his misdeeds.
The key question is why Cohen allowed himself to be used that way. But it is certainly not the first time a lawyer has gone off course because of misplaced allegiance to a client. Lawyer-to-the-stars Terry Christensen spent three years in prison because he thought his role in representing Hollywood’s elite, including billionaire Kirk Kerkorian, was to help them win their cases at any cost. So he hired a private detective to conduct illegal wiretaps
, including of Kerkorian’s ex-wife. Hip hop mogul Suge Knight’s lawyers found themselves indicted for conspiring to obstruct justice when they attempted to hire witnesses who would testify on Knight’s behalf in a murder case. Famed defense lawyer Lynne Stewart, who represented Omar Abdel Rahman (the “blind sheikh” convicted for instigating the 1993 World Trade Center bombing), lost her license and was sentenced to 10 years in prison because she believed that allegiance to her client demanded that she violate special national security rules for his case that barred passing information from Abdel Rahman to third parties.
Lawyers are sometimes blinded by the cause, but sometimes they are blinded by the client. In Cohen’s situation, he either forgot that his oath was to represent his client within the bounds of the law, or he feared the attacks he is receiving today as the president tweets one insult after another about his disloyalty. Once affiliated with a powerful person, it is hard to walk away. The client comes to psychologically own the lawyer. Lawyers affiliated with Richard Nixon later admitted that they’d felt blind allegiance to the president because he had put them in extraordinary positions of authority and influence. Nixon made them feel important. “My loyalty to Richard Nixon was personal and total,” recalled Bud Krogh
, a deputy assistant to the president. If you have only one master to serve, and the law is not that master, it’s easy to end up as part of a criminal enterprise.
In Trump’s case, he has never demonstrated high regard for his lawyers. He appears to treat them as disposable: useful so long as they are willing to do his bidding, expendable if they ever disagree with him. In the short time he has been in the White House, Trump has let go a slew of personal and government counsel — from John Dowd, who resigned when Trump signaled that he was prepared to ignore his advice, to Sally Yates, who was unceremoniously fired as acting attorney general when she wouldn’t defend the travel ban — and threatened others, such as Deputy Attorney General Rod Rosenstein, with dismissal. Trump treats lawyers, even those for the government, as if their job were to ratify his opinions and take whatever steps (proper or not) to ensure he gets his way.
The best way a lawyer can be dedicated to a client and remain true to herself is, first, to beware whom she represents. In the criminal arena, every defendant is entitled to representation, and lawyers should be willing, unless there is an absolute conflict, to represent even the most reprehensible clients. But no such duty is imposed upon civil lawyers like Cohen. Taking on a client means evaluating what representation might entail and explaining the boundaries to the client.
Second, a lawyer should be prepared to say “no” to a client, even one who is not used to hearing the word. The lawyer’s job is to be an independent adviser. While the goals of representation are up to the client, the means and tactics belong to the lawyer; a lawyer has a duty not to do anything unethical or illegal in accomplishing those goals. And if a client forces his attorney onto ethically perilous terrain — say, withholding evidence from discovery — she not only can, but is required to, withdraw. Except in extreme circumstances, judges permit lawyers to terminate their relationships with clients who are making improper demands. Given Trump’s view of lawyers, it may never have been possible for Cohen to give Trump independent advice. Trump sees every employee as subject to his whims.
Finally, a lawyer should assume that when things go bad for a client, the client will attack the lawyer. Therefore, she must be scrupulous when advising a client of the limits of his representation. If that means the lawyer won’t end up as the client’s best friend, so be it. If it means the lawyer won’t sail on a yacht, fly on a private jet or play golf with the client’s buddies, that’s fine. Fame and fortune are fleeting. A bar license should be forever.
Recalling Abraham Lincoln, fellow lawyer Henry C. Whitney said: “Mr. Lincoln would advise with perfect frankness about a potential case but when it was in esse, then he wanted to win as badly as any lawyer; but unlike lawyers of a certain type he would not do anything mean, or which savored of sharp practice, or which required absolute sophistry or chicanery in order to succeed. In a clear case of dishonesty he would hedge in some way so as not himself to partake of the dishonesty. In a doubtful case of dishonesty, he would give his client the benefit of the doubt, and in an ordinary case he would try the case so far as he could like any other lawyer except that he absolutely abjured technicality and went for justice and victory.”
Every client, not just the rich and famous, is entitled to a zealous advocate. But blind allegiance does not make a lawyer a zealous advocate. That is accomplished by hard work and commitment to the law, even if that supersedes the client’s whims. Cohen is not, as Trump says, disloyal to his employer. He was disloyal to the law. Now he is paying the price for it.