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Friday, January 05, 2018

First principles of lawyering: don't lie to your client.

Howard noted the swirl of insanity in recent news about the Trump administration. One of the things that is becoming increasingly clear is just how hard it is for the lawyers to do their jobs in this administration, where even the lawyers need lawyers and good legal advice is routinely disregarded.

Many sources are now openly questioning the President's mental fitness. Not being a physician (and never having spoken to President Trump), I don't know what his mental state is or isn't. But even the hypothetical question raises an interesting issue: how should White House attorneys treat a President that they believe may lack the capacity to make decisions in the interest of the office?

A recent New York Times article stated that one White House attorney felt obligated to "mislead the president about his authority to fire the F.B.I. director," because he "was convinced that if Mr. Comey was fired, the Trump presidency could be imperiled." The NYT reporter talked to Professor Stephen Vladeck, who concluded that the action "shows that the president’s lawyers don’t trust giving him all the facts because they fear he will make a decision that is not best suited for him."

Assuming the facts as reported are true, I would agree with Professor Vladeck's conclusion. But I would also note that the rules of legal ethics do not permit lawyers to manage their clients by intentionally misleading them--even when lawyers believe that doing so is in the client's best interest.

The Model Rules of Professional Conduct specify that when dealing with a client believed to have "diminished capacity," (that is, "when a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason"), then "the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client."

The rules acknowledge that a lawyer may have modify the attorney-client relationship in some ways. For example, if the client is at substantial risk of harm and unable to act in his or her own best interest, the lawyer may take protective action by seeking to appoint a guardian ad litem or other person to act in the client's best interest. The lawyer may do so even if it means disclosing otherwise confidential information, though "only to the extent reasonably necessary to protect the client's interests." And the lawyer may also delay sharing information with the client in some cases; a comment to Model Rule 1.4, "Communication," provides that "[i]n some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client." But even this exception is narrow in time and does not take precedence over the lawyer's duty to avoid engaging in "conduct involving dishonesty, fraud, deceit or misrepresentation."

A lawyer cannot ethically make a unilateral decision about what is in the client's best interest or mislead the client about what the law allows. It may be that the NYT reporter misunderstood what had happened. And certainly, even though the article asserts that the lawyer "never corrected the record" after his legal research concluded that Trump did have the authority to fire to the FBI director, Trump exercised that authority anyway--either advised by other lawyers or on his own initiative. 

But of course, representing the president is not an ordinary attorney-client relationship, and the situation as presented by the NYT article raises very difficult questions. If a lawyer for the president believes that he is incapable of making decisions in his own best interest--and perhaps incapable of acting prudently on information about his own legal options--what is the lawyer's ethical obligation? Is it possible to maintain a normal client-lawyer relationship? Is it wise to do so?

And if the lawyer cannot maintain a normal client-lawyer relationship, then what would cause less harm--trying to unilaterally manage the information the president is given and making decisions on his behalf, or going public with concerns about the president's fitness?


Posted by Cassandra Burke Robertson on January 5, 2018 at 05:07 PM in Law and Politics | Permalink


If "bar authorities won't take action unless the client complains" and "[h]arm to third parties isn't enough," then why does pretty much every bar authority require other attorneys to report some kinds of misconduct?

Posted by: Wondering | Jan 8, 2018 5:01:47 PM

CBR: In Wexler, the client DID complain, so it doesn't refute my point (look at the end of the sentence in the initial note). Other reported Ohio cases citing Wexler also note that the client complained. And that also goes to the "whether there is harm" issue.

My point was that bar authorities won't take action unless the client complains, regardless of the harm or undermining of the profession.

Posted by: Lewis Fielding's Ghost | Jan 7, 2018 12:24:05 PM

Trump is a special case but the general idea will arise repeatedly.

Posted by: Joe | Jan 6, 2018 4:01:04 PM

In response to Peter, I agree that the attorney *could* certainly have advised the president in just that way--that is, he could have said "Although a president can generally fire the FBI director without cause, I would not recommend that you do so under these circumstances, because you are putting yourself at risk of being accused of obstruction of justice." But the article suggests that the attorney didn't feel he could convince Trump of that--and so instead intentionally misled him, suggesting instead that he simply lacked the power to fire without cause at all (which the attorney's research had concluded was untrue).

And to Lewis Fielding's Ghost, I think would disagree on both counts. First, is there actual harm to the client? I think there is--we know that Trump is already predisposed to ignore legal advice. If his lawyers are, in fact, actively misleading him about his legal rights, then isn't he going to be even more likely to distrust and ignore legal advice? I think that is real harm.

But even if it is not, the second count ("no state bar regulatory authority...") is wrong as a matter of fact. Sure, clients who feel that they have suffered no harm are far less likely to file grievances. And the disciplinary sanction will be lessened in cases where there is no harm to the client. But there are many, many cases in which discipline has been imposed on attorneys even with an affirmative finding of no harm to the client. See e.g. Disciplinary Counsel v. Wexler, 13 N.E.3d 1168, 1172 (Ohio 2014) (imposing discipline on an attorney for misrepresentations, though finding that the attorney "has caused no harm to any client as a result of this conduct").

Posted by: CBR | Jan 6, 2018 11:14:08 AM

Despite the text of the rules, no state bar regulatory authority will seriously inquire or take action without proven harm to this client, except if the client complains. Harm without legal causation and a legal remedy isn't enough. Harm to third parties isn't enough.

Posted by: Lewis Fielding's Ghost | Jan 6, 2018 10:41:44 AM

It can’t be treason. We aren’t in a state of open hostilities with Russia.

Posted by: Brad | Jan 6, 2018 8:18:15 AM


Hillary Clinton used variations of 'I don't recall' 21 times when asked 25 questions under oath about how she deleted 33,000 State Department emails.

Had Hillary already lost her mind before the election? Was she unable to take office even if elected?

Posted by: Fast Fire and Furious | Jan 6, 2018 12:29:11 AM

If Trump was "insane" when he concluded with Russia, does that mean he can't go to prison even if it was treason? Or did Trump lose his mind after the collusion, and if so, did the collusion lead to the insanity?

Posted by: Fast Fire and Furious | Jan 6, 2018 12:25:39 AM

From apractitioner's perspective, I think the advice to Trump might have been within the range of "reasonably normal" and even "honest" in that the decision to fire Comey without cause might well turn out to be obstruction of justice and grounds for impeachment and removal from office.

Posted by: Peter | Jan 5, 2018 9:29:59 PM

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