Lawyers' Ethics and the Fate of the Nation

Recently, long-time Trump attorney Michael Cohen claimed to have paid sex worker Stormy Daniels $130,000 of his own money in 2016 during Trump's bid for the White House. The payment was in exchange for a nondisclosure agreement regarding an alleged affair Daniels had with Donald Trump. When asked by the press why he made this payment, Cohen replied, "Just because something isn't true doesn't mean that it can't cause you harm or damage. I will always protect Mr. Trump." So Cohen tried to insulate Trump from any potential “damage” by putting his own money and professional reputation on the line. Now both Cohen and Trump are being sued by Daniels for the right to tell her story.

Taking Michael Cohen at his word, and bracketing any question about campaign finance violations, while some may laud him for his tenacity in pursuing his client’s best interest, such conduct raises questions about the professional boundaries of attorneys in an adversary system. Is such boundless, unconditional, zealous advocacy professionally acceptable?

Pure Legal Advocates

A number of years ago I developed a distinction between two concepts of a lawyer in an adversary system, which has drawn considerable attention in the area of legal ethics. This distinction is that between what I called "pure legal advocates" versus "moral agents." According to the former, a lawyer is a technician skilled in manipulating the law solely for purposes of advancing a client’s legal interests. The question of law is one thing, that of morality another; and the attorney serves the law, not morality. In contrast, moral agent attorneys accept moral limits to what attorneys can do to advance their clients’ legal interests.

A classic and most extreme formulation of the pure legal advocate approach dates back to 1820 when Lord Brougham was defending Queen Caroline against George IV who was seeking to divorce her on grounds of adultery. According to Lord Brougham,

[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of the consequences, though it should be his unhappy fate to involve his country in confusion.

Such pure legal advocates, which appear to include Michael Cohen, often defend their lawyering philosophy by stressing the central role in our democracy of assuring that everyone have their constitutional right to counsel respected, as guaranteed by the Sixth Amendment. But, this does not require an attorney to “go on reckless of the consequences” even at the demise of the nation. Moreover, the Sixth Amendment applies to criminal law, and affords protection for indigent defendants who otherwise would not be able to afford legal representation. So, this justification would not be convincingly applied to an attorney paying off a sex worker with hush money on behalf of his billionaire client.

For the pure legal advocate it is more about winning, less about the search for truth or the administration of justice. Guilt is what a judge pronounces and if the judge never says you are guilty then you are not guilty. A favorite tactic of the pure legal advocate is selected ignorance. The advocate will forewarn the client that, if she tells him that she has lied to the court then the rules of professional conduct require him to take remedial measures, including, if necessary, telling the judge. It is also okay to cross-examine a witness the advocate knows to be telling the truth for purposes of discrediting her. Using personal attacks (“she’s a prostitute”), even if irrelevant to the charge (for example, rape) is okay just as long as it helps the client. For an administration such as the Trump administration, which subscribes to “alternative facts,” the pure legal advocate is, indeed, an ideal choice.

For example, the Trump administration recently hired Washington attorney Joseph E. diGenova, who in 1998, said that the Ethics in Government Act of 1978 should be discontinued. Title IV of this Act establishes the Office of Government Ethics, which is tasked with addressing conflicts of interest, ethical problems, and disclosure of financial statements by government officers. More recently, diGenova put forth a number of unsubstantiated conspiracy theories. For example, he claimed that the Mueller investigation into whether Trump campaign advisers colluded with Russia is “a brazen plot to illegally exonerate Hillary Clinton and, if she didn’t win the election, to then frame Donald Trump with a falsely created crime”; and that, “It wasn’t the Russians who corrupted the presidential election; it was the American officials at the Department of Justice and the FBI”; and that the appointment of Mueller as Special Prosecutor was illegal. Absent evidence to prove these allegations, they serve merely to obscure the search for truth and administration of justice, and to poison the well; precisely the special skills that a pure legal advocate brings to table.

Moral Agents

In contrast, the moral agent attorney sees the practice of law more in terms of truth and the administration of justice. The lawyer is, after all, an officer of the court, not merely the client’s advocate. This concept was classically stated by Lord Chief Cockburn. At a dinner in 1864 in which Brougham was also an invited speaker, Cockburn uttered these profound words in response to Brougham's preceding remarks:

My noble and learned friend, Lord Brougham, whose words are the words of wisdom, said that an advocate should be fearless in carrying out the interests of his client; but I couple that with this qualification and this restriction-that the arms which he wields are to be the arms of the warrior and not of the assassin. … [I]t is his duty, to the utmost of his power, to seek to reconcile the interests he is bound to maintain, and the duty it is incumbent upon him to discharge, with the eternal and immutable interests of truth and justice.

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In these words, Cockburn makes clear the centrality of advocacy in the lawyers role; however, he also makes clear that there are moral limits to advocacy. Thus an attorney should not be free to pursue wicked ends, even if he can legally get away with them. The law is not a tool for the subversion of truth and justice in order to win cases, but, to the contrary, should work harmoniously within boundaries set by "the eternal and immutable interests of truth and justice."

The moral agent concept is also inscribed in the Preamble of the American Bar Association’s Model Rules of Professional Conduct::

Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules.

The ABA clearly stresses the importance of exercising “sensitive professional and moral judgment” in resolving conflicts between the lawyer’s responsibilities to the client and those to the legal system and his own personal and ethical interests. While the rules of professional conduct stress zealous advocacy, they also allow for the exercise of moral discretion. For example, pursuant to Rule 3.3(a)(3) of the Model Rules, “A lawyer may refuse to offer evidence…that the lawyer reasonably believes is false.” A moral agent would exercise such moral discretion while the pure legal advocate would not think twice about using evidence reasonably believed to be false if it would help the advocate win, no matter what the moral outcome might be. Quite obviously, according to the moral agent concept, attorneys are not supposed to “go on reckless of the consequences, though it should be his unhappy fate to involve his country in confusion.”

Politics and Pure Legal Advocacy

While Lord Brougham’s remarks presented in the Queen Caroline case were likely not intended literally (Brougham appears to have actually agreed with Lord Chief Cockburn’s remarks made at the aforementioned dinner), the ideal Brougham's remarks embody seems to be fueling the intersection of politics and the practice of law in the current politico-legal climate. In this climate attorneys working for the government, particularly the White House, emerge as amoral conduits on tap for the administration to harness in manipulating the law, not for the welfare of the nation, but instead self-servingly.

For example, now former Trump attorney John Dowd recently called for an end to the investigation conducted by Special Counsel Robert Muller looking into Russian meddling in the 2016 presidential election, and possible ties to the Trump campaign team. "I pray,” said Dowd, “that Acting Attorney General Rosenstein will … bring an end to alleged Russia collusion investigation manufactured by McCabe's boss James Comey based upon a fraudulent and corrupt dossier." Here there is the scent of politicizing a serious legal process by using emotive terms such as “manufactured,” “fraudulent,” and “corrupt” in lieu of evidence. Behold a game-like, power play (firing people) for purposes of preempting the evidence from being heard before a determination of its merits can be made. Unfortunately, this is the mark of a pure legal advocate who is prepared to literally risk bringing down a nation in order to advance a client’s interests.

From here it is only a stone’s throw from something even more insidious.The danger of lawyers becoming cogs in a government machine systematically aimed at destroying the very foundations upon which the legal profession is based is not an alien possibility. For example, according to Kenneth C. H. Willig the legal profession in the Third Reich became “a facile instrument for state, i.e., National Socialist, rule.” According to Willig, from 1933 to 1945, there was a major decline in the development of the legal profession in Germany that “raises serious questions of professional responsibility and fidelity to the law which remain relevant to our own contemporary period.”

The molding of lawyers into “facile instruments” of state power in the Third Reich is an instructive example of how the legal profession can become a hand maiden to tyranny rather than the vanguard of democracy. As such, it is not hard to envision how lawyers like Michael Cohen and John Dowd could become witting pawns in a chaotic system that has the potential to undermine, not preserve, democracy. One would therefore do well to keep in mind the venerable words of Lord Chief Cockburn who admonished advocates to reconcile their duty of advocacy with “the eternal and immutable interests of truth and justice.”