A CLB Appellate Case Note of October 20, 2023 was titled “Don’t Tell the Lawyer” and pertained to the damnable failure of prosecutors, a trial court judge, and a gutless public defender in the compulsion of testimony by a lawyer against his former client in a criminal prosecution. The lawyer testified to a confidential admission from his criminally accused client who objected to no avail.
Today I can’t read the news without seeing how former lawyers of (former) President Trump are testifying or agreeing to testify against him in his pending cases. The names include Michael Cohen, Jenna Ellis, Sidney Powell, and Kenneth Cheesebro. Can Guiliani be far behind? Of the lawyers mentioned, all but Michael Cohen are or were co-defendants to Donald Trump in the Georgia criminal prosecution arising from the efforts to set aside the pro-Biden vote in the 2020 presidential election. Cohen escaped that fate by reason of his separation from the Trump camp years earlier over allegations from the payment of a bribe in exchange for the silence of (former) porn star Stormy Daniels over her (alleged) affair with Trump. Once elected, Trump could have tossed Cohen a life line but didn’t. As of this writing Cohen has already testified against Trump in the civil fraud case brought by the New York State Attorney General. While it is not a criminal prosecution, the case could result in dire financial consequence to Trump. Cohen’s status is that of an ex-lawyer and convicted felon. To the CLB an ex-lawyer’s moral duty includes the obligation to honor the client confidentiality of former years. The low esteem of Michael Cohen in the view of the CLB is confirmed by his conduct.
Sidney Powell escaped a 2022 effort in Texas to impose professional discipline against her. Could I hire her? It is safe to say (I think) that her legal career came to a close with her Georgia guilty plea. The same can be said of Ellis and Cheesebro.
It seems to the CLB that many lawyers who agreed to work for Trump have sacrificed their legal careers as a consequence. For several of those there has been the criminal consequence of being charged along with Trump. The CLB maintains that honest representation can never subject a lawyer to criminal prosecution. The CLB also maintains that a criminal prosecution does not release a lawyer from his duty of client confidentiality, except (perhaps) to exonerate the lawyer of wrongdoing but not to incriminate the former client.
The familiar claim that Guiliani was disbarred is false. His law license was merely suspended in New York. Unless Rudy opens up a prison practice of law, suspension will suffice to end his legal career. Moreso than the other lawyers mentioned, Giuliani embraced Trumpism and made his choice “ to dance with the devil.” In so doing he sacrificed his own good reputation and appeared to be foolish or worse to anyone paying attention.
Like the call of the mythological Sirens, there is something about that horrible (but rich and influential) client that can lure a lawyer to his doom. The CLB’s advice to lawyers who have the opportunity to serve a Trump-like figure is “just say no,” even if you have an intent to limit your role to opinion and advice.
The big picture here is that the current behavior of former Trump lawyers confirms the low esteem of the legal profession in general. With any luck, no lawyer indicted with Trump will ever again debase the legal profession by practicing law.
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