ALTERNATIVE FACTS, ALTERNATIVE ETHICS? 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.” 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 • “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.” 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 • 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.