Lawyers may be judged by the company they keep, but not by the clients they represent. Attorneys routinely advocate positions they disfavor on behalf of clients whose views and activities they do not personally endorse. They are enabled to do so by something fundamental and sacrosanct: their fiduciary duties to prioritize and protect their clients’ interests without regard to personal opinion, within the bounds of law and ethics, and with undivided fidelity.
A disheartening feature of the media and political landscape of late has been the prevalence of lawyers on television appearing to serve their own interests as much, if not more, than those of their clients. Troubling questions have arisen regarding how some attorneys were hired and paid, whether they kept clients reasonably informed, and the extent to which their statements and actions were actually authorized. This unfortunate phenomenon reached new heights (or perhaps depths) with the spectacle of President Donald Trump’s former personal attorney, Michael Cohen, engaging in a self-described cathartic metamorphosis before the House Oversight and Reform Committee last month.
Testifying before Congress is of course qualitatively different from self-promotional television appearances or media leaks, but Cohen’s testimony was more than just voluntary in the sense of not being under subpoena. Rather, it was downright eager, delivered with apparent relish, and chockfull of sensational revelations (such as allegations of boorish and bigoted behavior) extraneous to any legitimate investigatory or oversight function.
Since the dramatic televised hearing, there has been much speculation as to how much legal and political damage Cohen’s testimony inflicted on the president. Professor Ryan Goodman provided insightful and timely analysis of Cohen’s implication of his former employer in orchestrating his previous lies to Congress.
It is concerning, however, that not nearly as much attention has been paid by political or legal commentators to the damage Cohen’s loquaciousness may have wreaked on the public’s faith in the sanctity of the attorney-client relationship. The harm, I fear, was substantial. It also may ultimately bear more on the substance of Cohen’s allegations than has previously been contemplated.
The key attributes distinguishing the attorney-client relationship are the individualized duty of loyalty and confidentiality owed by lawyers to the person or entity they represent. These specialized obligations emanate from the intimacy and dependence of the relationship, wherein the client discloses sensitive and sometimes compromising information in their quest for legal assistance. Like a psychotherapist or chaplain, lawyers are privy to information their clients don’t want others to know. Except for rare circumstances, they have a professional responsibility not to divulge it. It does not matter whether the client is rich or poor, famous or obscure, powerful or helpless, admirable or contemptible — they are entitled to a confidential relationship with their attorney in which their interests take precedence.
Cohen, let’s remember, long identified himself as the President’s private lawyer, both before and for a time after he entered the White House. He was never a public official like John Dean of Watergate fame (although how much he wanted to be is apparently now a matter of dispute). In any event, the oft-cited Dean-Cohen analogy is inapt in terms of their professional relationships and attendant obligations. Dean represented a public institution, whereas Cohen represented an individual. A potential rejoinder to this observation is that Cohen was more ‘fixer’ than attorney. Yet the test for whether lawyer-client confidentiality attaches is normally construed in a manner friendly to the client — namely, were legal advice and services sought from someone reasonably viewed as authorized to provide them?
Although Cohen’s disbarment due to his felony convictions renders him impervious to further professional consequences, it is important to keep in mind that the lawyer’s fiduciary obligations can extend to former, not just current, clients. The duty of confidentiality would be meaningless if an attorney could publicize embarrassing details learned in the course of representing a client as soon as the representation ceased. Moreover, professional rules generally prohibit lawyers from using information gleaned through prior representation to the client’s disadvantage later on.
After federal agents raided Cohen’s office in April 2018, public discussion (along with the President’s Twitter account) naturally centered on the scope of the attorney-client privilege. The American Bar Association published a primer on the “crime-fraud exception,” which generally denies attorney-client privilege to communications that further illegal activity. Jeopardizing client confidences is just one of many reasons why lawyers should not engage in criminality with their clients.
However, the Cohen narrative quickly shifted from one of compelled disclosure to enthusiastic dissemination of private conversations, to include leaking illicit audio recordings. In Cohen’s Capitol Hill about-face, he threw the proverbial kitchen sink at his former client, levelling allegations that ran the gamut from illegal to immoral to unsavory. Seemingly lost in the shuffle was a foundational concept distinct from (but related to) the attorney-client privilege: the professional duty of confidentiality.
Congress’ institutional position is that the attorney-client privilege does not apply to its proceedings and subpoenas unless the relevant committee, through its chair, chooses to honor it. However, that does not necessarily excuse Congress for being so cavalier and dismissive of attorney confidences, both in Cohen’s case and in general, especially given that its membership is disproportionately comprised of lawyers.
The attorney-client privilege is an evidentiary doctrine that applies when confidential communications are sought via compulsory legal process. Confidentiality is not just a privilege, but a precept. It is an ethical touchstone of the attorney-client relationship. Confidentiality adheres even when the privilege is not invoked and is not necessarily swallowed by the privilege’s exceptions. In short, loyalty and confidentiality are much more than a privilege to assert. They are a duty for the lawyer to uphold. Viewing the Cohen affair solely through the lens of evidentiary privilege is too narrow and circumscribed a perspective.
Here is where the conversation about the attorney’s professional role comes up against the substance of Cohen’s allegations. A defendant of course can obstruct justice with or suborn perjury from their lawyer, or conspire to do either or both, but is this what it would look like? In the context of professional ethics, Cohen’s allegation that Trump indirectly directed him to lie to Congress about Russian real estate negotiations (and potentially other things) loses much coherence. Lawyers are forbidden from knowingly assisting clients in criminal or fraudulent conduct and from making false statements of material fact. If instructed to abet illegal behavior, a lawyer should counsel the client that the conduct is illegal and refuse to participate, potentially withdrawing from representation altogether (with requisite notice and disaffirmation) if the client persists.
Failure to do so may not excuse the client’s misconduct. However, a layperson suborning perjury from their own attorney via assertions of fact the attorney knows to be untrue is akin to inducing prescription fraud from a physician by claiming symptoms a first-year medical student would find dubious. The professional who should be attending to the individual’s legal or medical needs appears to be engaged in squarely the opposite. Regardless of employment status, a personal lawyer or doctor is never just a subordinate. Clients and patients are not customers; they cannot get everything they demand. Sometimes the standard of care is to say “no.”
Underpinning both the attorney-client privilege and the professional duty of confidentiality is a societal recognition of the importance of unencumbered legal advice. Clients are encouraged to be forthcoming with their problems and they reasonably expect secrecy as a result. It is for good reason that the legal ethics rules clearly differentiate between an attorney participating in illegality and explaining the legal consequences of a client’s plans. Providing “an honest opinion” about the likely outcome of a client’s conduct is part and parcel of practicing law.
The professional standard is not “blind loyalty,” but discerning loyalty. Lawyers don’t need to “take a bullet” on their clients’ behalf, but they do need to protect and prioritize their interests over personal gain. Claiming that the client obliquely told the attorney to lie under oath “in his way” is a tough circle to square, and not just because it would be herculean to prove under nearly any evidentiary standard. Absent some level of coercion or graft, there is a real question as to whether the required elements of an offense can be made out. This may help explain why the Special Counsel’s Office took the unusual step of refuting the explosive BuzzFeed report on this very issue earlier this year.
Let’s step back and imagine for a moment the broader impact on the legal profession if more members of the President’s legal team — or, for that matter, any prominent figure’s legal team — started speaking out on their own behalf as opposed to the client’s. There may already be disturbing signs that this is happening. Recently, a prestigious lawyer for presidential advisor and son-in-law Jared Kushner appeared to defend himself rather than his client on the controversy over security clearances. Former New York Mayor Rudy Giuliani, in his capacity as the president’s personal attorney, told The New Yorker he’s afraid his gravestone will read, “He lied for Trump” (he insisted afterward he was joking). Unless the tenets of professionalism are upheld by the legal community’s leaders and respected by Congress, what perverse incentives are being created for practitioners in the public eye? Perhaps more importantly and ominously, what message is being transmitted to the public at large about the role of attorneys in guarding client interests?
To the apparent glee of Trump’s political adversaries and gloom of his supporters, the president’s former attorney was well situated to deliver a laundry list of salacious allegations and bombshell revelations during his marathon testimony. Pundits can debate how bad this was for the president, but there’s little doubt it was deeply problematic for the public interest in robust attorney-client dialogue.
While the hearing itself did not prove a tour de force in congressional oratory, the most incisive question of the day may also have been the most problematic. Representative Justin Amash (R-Mich.) asked Cohen what details the President “is most afraid of” getting out. Alas, this is precisely the gotcha material a lawyer may know, but should almost never reveal. Cohen, for his part, seemed only to regret that he ran out of time to offer his best guess.
Image: Michael Cohen, former attorney for President Donald Trump makes a statement to the news media after testifying before the House Oversight and Government Reform Committee in the Rayburn House Office Building on Capitol Hill February 27, 2019 in Washington, DC. (Photo by Tasos Katopodis/Getty Images)