Mark Dubois
Mark Dubois ()

As I have written before, I am addicted to the dumpster fire that is the Trump White House. I follow the great one on the Twitter, not willing to wait for the (so dishonest, failing, so sad) media to inform me of the next firestorm. I can’t get enough of Sean Spicer’s ties or Kellyanne Conway putting her feet up on the presidential couch.

Doing what I do for a living, I can’t help but dissect a lot of it from the legal point of view. It’s like living through Watergate again. Recently, a bunch of legal ethics factotums, mostly professors and a few lecturers at some of the big schools, filed an ethics complaint with the D.C. Bar against attorney Conway over her misstep with the “Bowling Green Massacre” and her shilling for Ivanka Trump goods when it appeared that some department stores were going to drop the line. The lawyers’ ethics blogs and listservs got all worked up about this, though the media, wisely, mostly ignored it.

Readers and colleagues have also reached out to me about allegedly false statements made by James Comey, Rudy Giuliani, Jeff Sessions and others, wondering if there might be some disciplinary consequences. The common thread in all of the discussions is whether lawyers should be held to a higher standard than others when engaging in public speech, and whether the disciplinary process is the proper place to police misconduct of this nature.

A threshold question is something some ethics guys and gals call the “nexus perplexus” problem: whether we should be able to avoid lawyer discipline inquiry, prosecution or sanction for conduct which, though perhaps morally wrong, is not related to our actual law practices. While some of the rules clearly require a nexus (“while representing a client, a lawyer shall not…”), others are much broader (“a lawyer shall not engage in conduct involving fraud, deceit and misrepresentation”).

It’s easy if the statement is perjury and is prosecuted as such. It’s much more difficult parsing or distinguishing unintentional misstatements (the Bowling Green Incident) from an outright lie (the Bowling Green Massacre.)

Whether lawyers should be prosecuted for bad conduct unrelated to law practice—even if arguably permitted by the loose language of some rules—is more of an issue of prosecutorial discretion than black-letter law. Some think we should zealously police our ranks and weed out anyone who, in any forum, crosses the line. Others prefer the Biblical admonition to “render unto Caesar” and view publicized grievance filings like the professors’ Conway filing as political theater not worthy of serious attention.

An interesting example of how the Conway grievance may play out can be found in the recent reprimanding of a D.C. government lawyer who, 10 years ago, blew the whistle on a Bush administration warrantless-wiretapping program not by “reporting up,” as required by Rule 1.13, but by leaking the information to a New York Times reporter. (It’s unclear when the complaint was filed and why it took 10 years to reach a public end; the wheels of lawyer justice sometimes grind very slowly.) Regardless of the lawyer’s best intentions in doing what he did, he violated Rule 1.6′s duty of confidentiality and was brought to task.

John Dean—perhaps one of the most remembered of the Watergate lawyers disbarred over their conduct in and for the Nixon White House—has made his livelihood for the last decades giving talks and lectures on the whole affair. I’ve heard him speak, and find that I get lost in the minutiae of all the players and the levels of duplicity and double-crossing. The big takeaway is, when political conduct crosses criminal lines, there will be consequences.

Left unanswered is the question of when lawyers are required to walk away from clients or institutions that are engaging in conduct that, while maybe not criminal, certainly is nothing of which you’d be proud. We’re starting to see some of that now with Trump’s defenders simply saying, when asked to defend some of the more outrageous claims coming from Twitter, that the president believes what he believes without vouching that his beliefs have any greater basis in fact than imbalanced humors, an upset stomach or an Internet troll.

I saw some stats the other day that this administration has fewer lawyers per capita in its higher ranks than many in years past. This may cut down on the amount of disbarments that follow in its wake. But I don’t think the lawyer discipline police should be the first line in keeping them honest. There’s no statute of limitations on most lawyer disciplinary matters, so there will be plenty of time to deal with those issues later. For now, let’s give them all the rope they need.

As I have written before, I am addicted to the dumpster fire that is the Trump White House. I follow the great one on the Twitter, not willing to wait for the (so dishonest, failing, so sad) media to inform me of the next firestorm. I can’t get enough of Sean Spicer’s ties or Kellyanne Conway putting her feet up on the presidential couch.

Doing what I do for a living, I can’t help but dissect a lot of it from the legal point of view. It’s like living through Watergate again. Recently, a bunch of legal ethics factotums, mostly professors and a few lecturers at some of the big schools, filed an ethics complaint with the D.C. Bar against attorney Conway over her misstep with the “Bowling Green Massacre” and her shilling for Ivanka Trump goods when it appeared that some department stores were going to drop the line. The lawyers’ ethics blogs and listservs got all worked up about this, though the media, wisely, mostly ignored it.

Readers and colleagues have also reached out to me about allegedly false statements made by James Comey, Rudy Giuliani, Jeff Sessions and others, wondering if there might be some disciplinary consequences. The common thread in all of the discussions is whether lawyers should be held to a higher standard than others when engaging in public speech, and whether the disciplinary process is the proper place to police misconduct of this nature.

A threshold question is something some ethics guys and gals call the “nexus perplexus” problem: whether we should be able to avoid lawyer discipline inquiry, prosecution or sanction for conduct which, though perhaps morally wrong, is not related to our actual law practices. While some of the rules clearly require a nexus (“while representing a client, a lawyer shall not…”), others are much broader (“a lawyer shall not engage in conduct involving fraud, deceit and misrepresentation”).

It’s easy if the statement is perjury and is prosecuted as such. It’s much more difficult parsing or distinguishing unintentional misstatements (the Bowling Green Incident) from an outright lie (the Bowling Green Massacre.)

Whether lawyers should be prosecuted for bad conduct unrelated to law practice—even if arguably permitted by the loose language of some rules—is more of an issue of prosecutorial discretion than black-letter law. Some think we should zealously police our ranks and weed out anyone who, in any forum, crosses the line. Others prefer the Biblical admonition to “render unto Caesar” and view publicized grievance filings like the professors’ Conway filing as political theater not worthy of serious attention.

An interesting example of how the Conway grievance may play out can be found in the recent reprimanding of a D.C. government lawyer who, 10 years ago, blew the whistle on a Bush administration warrantless-wiretapping program not by “reporting up,” as required by Rule 1.13, but by leaking the information to a New York Times reporter. (It’s unclear when the complaint was filed and why it took 10 years to reach a public end; the wheels of lawyer justice sometimes grind very slowly.) Regardless of the lawyer’s best intentions in doing what he did, he violated Rule 1.6′s duty of confidentiality and was brought to task.

John Dean—perhaps one of the most remembered of the Watergate lawyers disbarred over their conduct in and for the Nixon White House—has made his livelihood for the last decades giving talks and lectures on the whole affair. I’ve heard him speak, and find that I get lost in the minutiae of all the players and the levels of duplicity and double-crossing. The big takeaway is, when political conduct crosses criminal lines, there will be consequences.

Left unanswered is the question of when lawyers are required to walk away from clients or institutions that are engaging in conduct that, while maybe not criminal, certainly is nothing of which you’d be proud. We’re starting to see some of that now with Trump’s defenders simply saying, when asked to defend some of the more outrageous claims coming from Twitter, that the president believes what he believes without vouching that his beliefs have any greater basis in fact than imbalanced humors, an upset stomach or an Internet troll.

I saw some stats the other day that this administration has fewer lawyers per capita in its higher ranks than many in years past. This may cut down on the amount of disbarments that follow in its wake. But I don’t think the lawyer discipline police should be the first line in keeping them honest. There’s no statute of limitations on most lawyer disciplinary matters, so there will be plenty of time to deal with those issues later. For now, let’s give them all the rope they need.