Alternative Facts, Alternative Ethics?

Home , Kellyanne Conway, Marc Kasowitz, Sean Spicer, Ty Cobb (attorney)

The Challenges of Lawyering in the Trump Era

Judy Cornett Professor, The University of Tennessee College of Law In collaboration with Brian Wilson, UT Law Class of 2019 TY COBB

• White House Special Counsel: July 2017 – May 2018 • Cobb had lunch with co-counsel John Dowd at a Washington, D.C. restaurant in earshot of a New York Times reporter. A cell-phone picture of and article about their conservation made the Sunday paper. • “They were in a public place where they could have been overheard by anyone, so I figured their conversation was fair game.”

Kenneth Vogel, “A Reporter’s Accidental Scoop,” N.Y. T IMES , Sept. 20, 2017, at A2. TY COBB

• “To my astonishment, they were in the midst of a detailed discussion of the Russia investigation being conducted by the special counsel, Robert S. Mueller III, and various congressional committees, as well as the strategy of Mr. Trump’s team for responding.” • “They discussed presidential privilege and its effect on document production, tensions on the legal team and their colleagues. Mr. Cobb suggested one colleague was not on the President’s good side, but added, ‘I’m trying to get the president not to pick a fight with her.’”

Kenneth Vogel, “A Reporter’s Accidental Scoop,” N.Y. Times, Sept. 20, 2017, at A2.

TY COBB

• Their actions not only made their legal strategies vulnerable to publication, but also exposed them to ethics violations. • Tennessee Rules of Professional Conduct – Rule 1.6 – Confidentiality • (a) A lawyer shall not reveal information relating to the representation of a client unless: • (1) the client gives informed consent; • (2) the disclosure is impliedly authorized in order to carry out the representation; or • (3) the disclosure is permitted by paragraph (b) or required by paragraph (c).

TY COBB

• “Both of these experienced lawyers are familiar with and presumably fully appreciate their professional ethical obligations to take reasonable measures to safeguard client-confidential information. BLT Steak DC, where they conversed so freely, is located next door to the Times. It is not reasonable to take a table there, much less anywhere, and engage in discussions of an exquisitely privileged nature.”

Bob Bauer, Clashes (and Conflicts) of Interests: Trump White House Lawyers at Lunch and at War, LAWFARE, Sept. 19, 2017, https://lawfareblog.com/clashes-and-conflicts-interests-trump-white-house-lawyers-lunch- and-war.

TY COBB

• How easy is this to do? Very. • How do you protect against these situations? • “Clearly, when out in the public lawyers should be careful to avoid discussing confidential client information. Some state bar association ethics opinions have cautioned lawyers to be mindful of their duties to protect client confidences in various related contexts. ”

Peter Geraghty, Loose Lips Can Sink Ships, AMERICAN BAR ASSOCIATION CENTER FOR PROFESSIONAL RESPONSIBILITY, Oct. 2017, https://www.americanbar.org/groups/professional_responsibility/services/ethicssearch/ethicstipoctober20 17.html KELLYANNE CONWAY

• "Our press secretary, Sean Spicer, gave alternative facts to [these claims], but the point remains that..."

• “I bet it’s brand-new information to people that President Obama had a six-month ban on the Iraqi refugee program after two Iraqis came here Photo credit: Gage Skidmore/Wikimedia Commons to this country, were radicalized, Meet the Press, NBC NEWS, Jan. 22, 2017, https://www.nbcnews.com/meet-the-press/video/conway- and were the masterminds behind press-secretary-gave-alternative-facts-860142147643 the Bowling Green Massacre. Most

Hardball with Chris Matthews, MSNBC, Jan. 29, 2017, people don’t know that because it https://www.youtube.com/watch?v=g-w16cyQ8wQ didn’t get covered.”

KELLYANNE CONWAY

• Tennessee Rules of Professional Conduct – Rule 8.4 – Misconduct • It is professional misconduct for a lawyer to: • (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; • (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects; • (c): engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;

KELLYANNE CONWAY

• Several attorneys drafted a letter accusing Conway, a member of the D.C. Bar, of misconduct. • “Generally speaking, we do not believe that lawyers should face discipline under this Rule for public or private dishonesty or misrepresentations unless the lawyer’s conduct calls into serious question his or her ‘fitness for the practice of law’… or indicates that the lawyer ‘lacks the character required for bar membership.’” • “However, we believe that lawyers in public office—Ms. Conway is Counselor to the President— have a higher obligation to avoid conduct involving dishonest, fraud, deceit, or misrepresentation than other lawyers.”

Letter from Abbe Smith et al to Office of Disciplinary Counsel, Board of Professional Responsibility, D.C. Court of Appeals (Feb. 20, 2017) (available at http://apps.washingtonpost.com/g/documents/national/read- the-misconduct-complaint-sent-by-law-professors-against-white-house-counsel-kellyanne-conway/2346/).

KELLYANNE CONWAY

• “We do not file this complaint lightly… We believe that, at one time, Ms. Conway, understood her ethical responsibilities as a lawyer and abided by them. But she is currently acting in a way that brings shame upon the legal profession. As the Preamble to the Model Rules states, a lawyer plays an important role as a ‘public citizen’ in addition to our other roles.”

KELLYANNE CONWAY

• “If Ms. Conway were not a lawyer and was ‘only’ engaging in politics, there would be few limits on her conduct outside of the political process itself. She could say and do what she wished and still call herself a politician. But she is a lawyer. And her conduct, clearly intentionally violative of the rules that regulate her professional status, cries out for sanctioning by the DC Bar.”

KELLYANNE CONWAY

• Other attorneys believe these allegations are overblown, particularly given the non-legal context of her remarks. • “[E]thics charges should not be a form of politics by other means and, with all due respect to these accomplished academics, this letter strikes me as raising largely political objections to Conway’s work as a spokesperson for the Administration.” • “The inclusion of such a controversy in my view wholly undermines the credibility of the ethics charge. The professors are asking that the bar presume that Conway intentionally lied eve though such a lie would be immediately challenged and she later apologized. Moreover, she was acting not as a lawyer but as a political spokesperson in such a capacity.”

Jonathan Turley, Law Professors File Ethics Complaint Against Kellyanne Conway, JONATHANTURLEY.ORG (Feb. 24, 2017), https://jonathanturley.org/2017/02/24/law-professors-file-ethics-complaint-against-kellyanne- conway/. KELLYANNE CONWAY

• “As a liberal Democrat, I have no sympathy for Conway’s habitual disregard for truth. As a professor of legal ethics, however, I think this complaint is dangerously misguided and has the potential to set a terrible precedent. If one of the president’s chief advisers cannot freely speak her mind, even when it is full of nonsense, then who can?” • “Imposing discipline on Conway—even the mildest slap on the wrist—would inevitably lead to a slew of new complaints against attorneys involved in public debate.”

Steven Lubet, In Defense of Kellyanne Conway, SLATE, (Feb 27, 2017, 9:22 AM), http://www.slate.com/articles/news_and_politics/jurisprudence/2017/02/the_misconduct_complaint_agai nst_kellyanne_conway_is_dangerously_misguided.html. KELLYANNE CONWAY

• Is this zealous representation of a client, or fraudulent and deceitful conduct? • Is there a line between spin and outright lies? • How does an advocate’s role change from politics to the law? • Should Conway be disciplined? She is no longer a listed member of the D.C. Bar. MICHAEL COHEN

• Attorney, for Donald Trump and Trump Organization since 2007 • Under federal investigation for possible bank fraud, campaign finance violations

• “I am Mr. Trump's longtime special counsel and I have proudly served in that role for more than a decade. In a private transaction in 2016, I used my own personal funds to facilitate a payment of Photo credit: IowaPolitics.com/Wikimedia $130,000 to Ms. Stephanie Clifford.” Commons

Rebecca Ballhaus et al, Trump Lawyer Said He Personally Paid Stormy Daniels, WALL ST. J., Feb. 14, 2018, https://www.wsj.com/articles/trump-lawyer-says-he-personally-paid-stormy-daniels-1518585093

MICHAEL COHEN

• “What are the stakes here for Cohen? First, if the payment was made ‘in connection with pending or contemplated litigation,’ it violates Rule 1.8, exposing Cohen to disciplinary sanctions. But that's only the beginning. If the payment was made as part of the campaign effort, as the timing suggests, it may have violated federal election laws as it was both unreported and exceeded the permitted amount for an individual contribution.” • “Therefore, if Cohen and Trump agreed to the payment as part of the campaign effort and agreed not to report the payment as an in-kind campaign contribution, this would violate Rule 1.2(d)'s prohibition against assisting a client in engaging in fraud. It would also violate Rule 8.4(c) which forbids conduct involving dishonesty, fraud, deceit or misrepresentation.”

Ellen C. Brotman, A Spring Crop of Ethics Issues in Trump’s World, THE LEGAL INTELLIGENCER, Mar. 29, 2018, https://www.law.com/thelegalintelligencer/2018/03/29/a-spring-crop-of-ethics-issues-in-trumps-world/. MICHAEL COHEN

• Tennessee Rules of Professional Conduct, Rule 1.8 – Conflict of Interest, Current Conflicts • (e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: • (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and • (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.

MICHAEL COHEN

• Tennessee Rules of Professional Conduct, Rule 1.2 – Scope of Representation • (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows or reasonably should know is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law.

MICHAEL COHEN

• “It would definitely violate the strict letter of the rule. What’s not clear is if this type of conduct is what the rule was intended to be concerned about.” She says Rule 1.8(e) deals with clients in connection with contemplated or pending litigation.” • “If it was a payment in aid of a settlement, it doesn’t address the policy argument about not wanting lawyers to be paying and funding litigation. This is not litigation, it’s the opposite of litigation. Like everything with Trump, he sort of creates a new reality.”

Stephanie Francis Ward, Trump’s attorney’s statement that he paid Stormy Daniels $130K raises ethics questions, ABA JOURNAL, Feb. 14, 2018, http://www.abajournal.com/news/article/trump_attorneys_statement_stormy_daniels. MICHAEL COHEN

• “As a result of his effort to insulate Trump, Cohen is utterly exposed. First, if he is speaking truthfully that Trump had no knowledge of the payment, he signed a document on behalf of a client (and ostensibly binding the client) without either consulting with his client or securing his consent. That would be a clear ethical breach.” • “Cohen reportedly complained that the delay in paying off Daniels was due to the fact that he could not reach Trump and later complained that Trump never reimbursed him…. Rule 1.4 of the New York Rules of Professional Conduct require conferral and communication with a client on such agreements.”

Jonathan Turley, “Stormy Daniels takes on Donald Trump, but lawyer Michael Cohen is the real loser,” USA TODAY, Mar. 12, 2018, https://www.usatoday.com/story/opinion/2018/03/12/stormy-daniels-versus- donald-trump-michael-cohen-clear-loser-jonathan-turley-column/414898002/ MICHAEL COHEN

• Tennessee Rules of Professional Conduct – Rule 1.4 • (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in RPC 1.0(e), is required by these Rules;… • Tennessee Rules of Professional Conduct – Rule 1.4, comment 2 • For example, a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance, unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer.

MICHAEL COHEN

• “President Trump’s personal attorney Michael Cohen was hired last year by the U.S.-based affiliate of a Russian business magnate who attended Trump’s inauguration and was recently subjected to sanctions by the U.S. government, the company said Tuesday. The New York investment firm Columbus Nova said it retained Cohen as a consultant ‘regarding potential sources of capital and potential investments in real estate and other ventures.’”

Rosalind S. Helderman et al, “Trump’s attorney Michael Cohen was hired by U.S. affiliate of Russian company”, THE WASHINGTON POST, Feb. 9, 2018, https://www.washingtonpost.com/politics/trumps- attorney-michael-cohen-was-hired-by-us-affiliate-of-russian-company/2018/05/08/12a218c8-52f6- 11e8-abd8-265bd07a9859_story.html. MICHAEL COHEN

• Tennessee Rules of Professional Conduct – Rule 5.7 – Responsibilities Regarding Legal-Related Services • (a) A lawyer shall be subject to the Rules of Professional Conduct with respect to the provision of law-related services, as defined in paragraph (b), if the law-related services are provided: • (1) by the lawyer in circumstances that are not distinct from the lawyer's provision of legal services to clients;…

MICHAEL COHEN

• “A line has been drawn in the sand. Attorneys may advance their fees, advance litigation expenses, and even pay litigation expenses for indigent clients, but may not advance any living expenses to any client…. • “[MRPC 1.8(e)] states: ‘Lawyers may not subsidize lawsuits or administrative proceedings brought on behalf of their clients, including making or guaranteeing loans to their clients for living expenses, because to do so would encourage clients to pursue lawsuits that might not otherwise be brought and because such assistance gives lawyers too great a financial stake in the litigation.’”

Cristina D. Lockwood, Adhering to Professional Obligations: Amending ABA Model Rule of Professional Conduct 1.8(e) to Allow for Humanitarian Loans to Existing Clients, 48 U.S.F. L. R EV. 457, 472 (2014). MARC KASOWITZ

• President Trump’s personal attorney for more than 15 years • Led initial response to special counsel’s investigation as Trump’s lead attorney • Interacted with White House staff as part of the representation • Replaced by John Dowd after several Image Credit: C-SPAN months after a reported falling out with Trump.

Michael Schmidt et al, The Loyalists and Insiders Fighting President Trump’s Battles, N.Y. T IMES, May 3, 2018, https://www.nytimes.com/interactive/2018/05/03/us/politics/president-trumps-lawyers.html

MARC KASOWITZ

• Mr. Kasowitz met with White House aides inside the White House complex and advised them there is no need for them to retain counsel. According to the biography posted on Mr. Kasowitz’s firm’s website, Mr. Kasowitz is a member of the New York bar, but not the District of Columbia bar. Therefore, by offering aides the legal advice not to retain counsel, it appears Mr. Kasowitz engaged in the unauthorized practice of law in violation of Rule 5.5(a).”

• Letter from Daniel E. Stevens to Office of Disciplinary Counsel, Board of Professional Responsibility, D.C. Court of Appeals (June 15, 2017) (available at https://www.documentcloud.org/documents/3866470-CfA-Kasowitz-Bar-Complaint-6-15-17.html). MARC KASOWITZ

• “District of Columbia Bar Rule 4.3… provides: (a) In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not: (1) Give advice to the unrepresented person other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of the lawyer’s client.” • “By advising White House staff members, who are not represented by counsel and who have a reasonable possibility of having interests in conflict with the interests of President Trump, Mr. Kasowitz’s client, that they do not need to hire their own counsel, Mr. Kasowitz appears to have violated Rule 4.3.” • Letter from Daniel E. Stevens to Office of Disciplinary Counsel, Board of Professional Responsibility, D.C. Court of Appeals (June 15, 2017)(available at https://www.documentcloud.org/documents/3866470-CfA-Kasowitz-Bar-Complaint-6-15-17.html).

MARC KASOWITZ

• Tennessee Rules of Professional Conduct, Rule 5.5(c) – Multijurisdictional Practice of Law • (c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that: • (2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized; MARC KASOWITZ

• Tennessee Rules of Professional Conduct Rule 4.3, comment 2 – Dealing with an Unrepresented Person • “The Rule distinguishes between situations involving unrepresented persons whose interests may be adverse to those of the lawyer's client and those in which the person's interests are not in conflict with the client’s. ... Whether a lawyer is giving impermissible advice may depend on the experience and sophistication of the unrepresented person, as well as the setting in which the behavior and comments occur. ” MARC KASOWITZ

• How to avoid this? • “Another difficult inquiry that very often arises is the simple, direct question: ‘Do I need my own lawyer?’ The standard wisdom is to reply that this is a decision that only the employee can make. For example, one commenter suggests: ‘The answer should typically include a statement that the decision whether to retain counsel is up to the employee and (if true, as is likely early in an investigation) that the interviewer may not have enough facts to make a judgment.’”

Sarah Helene Duggin, Internal Corporate Investigations: Legal Ethics, Professionalism and the Employee Interview, 2003 COLUM. BUS. L. REV. 859, 865 (2013).