by Hilary Gerzhoy
The mounting evidence that Donald Trump mishandled classified information after leaving office — and the response of his legal team to the Department of Justice investigation — reveals the former president’s threat to another critical institution: the legal profession.
As part of the Justice Department’s efforts to recover classified materials Trump took with him from the White House, Trump’s lawyer Christina Bobb certified on June 3 that all of the documents had been relinquished. The FBI’s search of Mar-a-Lago debunked this certification, placing Bobb and others in legal jeopardy.
The legal threat to Trump’s lawyers is hardly new. The sheer number of prominent lawyers accused of violations of the American Bar Association’s Model Rules of Professional Conduct — the law that governs lawyers — in their advocacy for Trump is unparalleled in American history.
Throughout Trump’s presidency, constitutional scholars and political scientists raised alarms about his blatant disregard for the law and his ongoing efforts to undermine democratic institutions. The legal troubles facing Trump’s lawyers are frequently interpreted, however, as a secondary consequence of his presidency — certainly a danger to Trump and the individuals involved, but hardly a threat to the broader system of justice.
But that perspective overlooks the critical role that lawyers play in our system of jurisprudence and the extent of the ethical lapses. Our society places a practical reliance on prosecutors to try cases and on defense attorneys to ensure the law does not overreach. The justice system also requires lawyers to act ethically when discharging these duties. There is a reason lawyers are “officers of the court” — their responsibilities extend not only to their clients but also to the rule of law itself.
For that same reason, in addition to passing the bar exam and swearing an oath to uphold the law, lawyers must comply with the Model Rules of Professional Conduct that govern their professional behavior. It is these rules, particularly those proscribing criminal acts, dishonesty, deceit and misrepresentation, that have repeatedly ensnared Trump’s lawyers.
While many lawyers in Trump’s orbit refused to compromise their ethics, others skirted the rules or brazenly overstepped them. These lawyers fall into two categories. First are those like Rudy Giuliani, Sidney Powell and Michael Cohen, who appeared to have knowingly participated in deceptive practices and criminal practices to further their client’s personal and political aims. All three have been subject to disciplinary consequences, including, in the case of Cohen, disbarment. The second group are those like Trump’s lawyers in the recent DOJ investigation, who likely became enmeshed in ethics challenges because they fell prey to Trump’s relentless pressure to shield him from justice.
As a lawyer who represents other lawyers in disciplinary cases, I balk at prejudging the guilt of any of Trump’s lawyers. I have seen too many lawyers falsely accused of misconduct to assume that accusation alone equates to guilt. But what is clear is that Trump’s lawyers are repeatedly forced to choose between their obligations to the former president and their commitment to legal ethics. Trump’s prominence and the flagrancy of his efforts to subvert democracy exacerbate the exceptional threat he poses to the legal profession as a pillar of our system of government. By successfully coercing his lawyers into violating their ethical obligations, Trump is setting a precedent that threatens to dilute the legal profession’s commitment to the rule of law.
What can be done to combat this threat?
First, lawyers who represent Trump must be prepared to resist any pressure to violate the ethics rules, not only to protect themselves but also to mitigate his continued damage to their profession. Like every American caught up in our criminal justice system, Trump has a right to representation. That right does not extend, however, to abusing his legal relationships to escape justice. If Trump pressures his lawyers to offer false evidence or to assist him in criminal conduct, they must be prepared to withdraw. In the battle between maintaining loyalty to client and preserving the integrity of the justice system, the former must always give way.
Secondly, the broader legal profession must respond to this unique period of public attention with a recommitment to professional responsibilities. The overwhelming majority of lawyers treat their ethical responsibilities with the gravity they deserve. Nevertheless, perception can become its own reality, and Trump’s onslaught on the reputation of the legal profession requires an equally forceful response. All lawyers must be doubly sure they are familiar with the ethics rules and comply with them assiduously.
Despite Trump’s predilection for undermining the rule of law, U.S. courts have thwarted his worst instincts. But critical to the ultimate strength of the judiciary as an institution is the ethical commitment of the lawyers who serve it.
