...And Now The Inevitable Ethics Complaint Against Trump's Lawyer
This was dumb, but it's unlikely this ends with Marc Kasowitz getting in ethical trouble.
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When the New York Times reported that Trump’s personal attorney Marc Kasowitz was telling White House aides not to retain their own counsel, it seemed like the sort of detail that we’d hear more about down the road. While most Americans think “legal ethics” is an oxymoron, the profession does take it pretty seriously, and “giving legal advice to people who aren’t your client” is one of those maxims that matter a lot. Especially in potential criminal matters. After all, there’s that whole Upjohn thing that structured finance attorneys may only remember vaguely from law school, but white-collar litigators have tattooed on their backs.
Maybe that’s why people hire experienced criminal defense lawyers and not real estate litigators when they’re embroiled — target or not — in a criminal probe? Just a thought.
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So it comes as little surprise that it took less than a week after this broke for someone to lodge the formal ethical complaint against Kasowitz. Now comes the non-partisan Campaign for Accountability with a bar complaint alleging breaches of both Rule 4.3 and Rule 5.5(a) regarding the unauthorized practice of law. [UPDATE: There’s also a complaint lodged with the First Department in New York over this conduct. You can read it here.]
From the organization’s press release:
District of Columbia Professional Rule of Conduct 5.5(a) provides “a lawyer shall not practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.” Rule 4.3 prohibits lawyers from offering any unrepresented party who has a potential conflict of interest with the lawyer’s own client with any advice other than that they retain counsel.
Well, that’s certainly what the Times report suggested, and while Kasowitz has — through a spokesperson — denied the accuracy of that article, he wasn’t able to offer a counter-narrative of what he really said.
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Let’s all cool our jets here. While this was undeniably poor judgment on his part if true, it doesn’t necessarily rise to something unethical. It all depends on who these anonymous staffers were. If Kasowitz is telling a national security staffer who sat in on multiple meetings between Trump and Michael Flynn or that meeting with Kislyak where Trump handed over classified material for the laughs, then telling them not to hire an attorney is obviously a breach of Rule 4.3. But if he told a gathering of admins charged with robosigning physical fitness certificates for elementary schoolers that they don’t need lawyers, it’s hard to imagine that would meet the “knows or reasonably should know” of a potential conflict standard. There are a lot of moving parts in the White House, and not everyone has even a tangential relationship to the subject of the investigation.
That said, this is what a disciplinary committee should try to get to the bottom of, if only to impress upon attorneys that Rule 4.3 is serious and should be approached with an abundance of caution. But for those hoping for an edict tagging someone close to the president as “unethical,” this complaint probably isn’t going very far. These anonymous staffers cited in the Times piece presumably enjoy remaining employed, making it hard to believe that if they’ll come forward and testify — whether or not they’re the sort of employees likely to have a conflict. Without that testimony, this isn’t much to go on.
Leaving us, fairly or not, with a complaint that provides more theatrical weight than legal significance. A fitting result for this whole administration so far.
(The full complaint is available on the next page…)
Role of Trump’s Personal Lawyer Blurs Public and Private Lines [New York Times]
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Earlier: Is Marc Kasowitz Drunk On His Own Power?
Joe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.
