One morning nearly 40 years ago, I appeared before the Appellate Division of the New York state Supreme Court, raised my right hand, and, along with about 200 other young lawyers, was sworn in as an “attorney and counsellor at law.” Those words on the engraved certificate, which I proudly displayed in my law office, mean something. An attorney is one who acts for another or represents another in legal matters and court proceedings. A counsellor, as its name implies, provides legal counsel or guidance to clients.
Nowhere in the oath that I took or in the certificate I received did it say anything about being a press agent. Yet, as I have observed over the course of my legal career, more and more lawyers have taken on the role once reserved for high-priced public relations firms. And this development is good neither for lawyers nor the public they are supposed to serve.
Let us consider the case of Marc E. Kasowitz, the attorney representing President Donald Trump in connection with Special Counsel Robert Mueller’s investigation into Russia’s interference with the 2016 presidential election. In his role as attorney qua press agent, Kasowitz makes statements that, in light of what is known, simply defy belief. Examples abound. On April 14, Kasowitz, representing then-Fox News host Bill O’Reilly, said his client was “being subjected to a malicious campaign intent on harming his reputation and family through speculation and innuendo.” Four days later, Kasowitz put out a second statement claiming that O’Reilly had been “subjected to a brutal campaign of character assassination that is unprecedented in post-McCarthyist America.” He went on to state that “irrefutable” evidence would be “put forth shortly” showing that O’Reilly was the target of a smear campaign orchestrated by far-left organizations bent on destroying him. Not surprisingly, no credible evidence of a smear campaign against O’Reilly was proffered. Instead, Kasowitz’s client was fired the next day after it became public that the Fox News Network had entered into settlements costing it a total of $13 million to five women who had complained about sexual harassment and other inappropriate behavior on the part of O’Reilly.
More recently, within hours of the congressional testimony of former FBI Director James Comey wherein Comey accused the president of telling “lies, plain and simple” and of giving him what he perceived to be an improper order to cease investigating the former disgraced National Security Adviser Michael Flynn, Kasowitz put out a statement claiming that Trump “feels completely and totally vindicated” by Comey’s remarks. The president—no stranger to tweeting—could have published that sentiment himself (and, in fact, did so just days later). Presumably, Kasowitz’s statement was supposed to have greater force because it came from the mouth of a lawyer. But it added nothing to our collective knowledge about a matter of public importance and, because it was so clearly false—neither Trump nor Kasowitz could conceivably have viewed Comey’s testimony as a vindication, complete, total or otherwise—it served to bring further opprobrium upon lawyers whom a significant segment of society already views with contempt and distrust. It merely enhanced the widely held belief that lawyers, for a fee, will say anything, anytime, anywhere, on behalf of a client.
Useless, or worse, public statements issued on behalf of a client are not the sole province of defense attorneys. Public prosecutors have morphed into press agents as well. A good example is Preet Bharara, the former Southern District U.S. Attorney (and, in the interest of full disclosure, my former boss) who was fired by Trump. At one time during his tenure, Bharara had as many as five full-time professional employees working for him in public relations. The lawyers in Bharara’s office—assistant U.S. attorneys—drafted and vetted his press releases and prepared him for his almost daily press conferences. That being the case, as far as I could tell the main function of Bharara’s professional PR staff was to ensure that each press release contained a quote from him about the case in question, one that: a) was invariably written in purple prose, b) was designed to be picked up by the press and attributed to Bharara and c) many times came close to or arguably crossed the line concerning what public prosecutors may say about a pending criminal case. And while public law offices have an obligation to inform the public about what they are doing, a survey of Bharara’s press releases and statements at press conferences reveals that far beyond doing just that they were designed and intended to boost Bharara’s public image and enhance his brand by getting his name in the press in a favorable light.
Bharara excesses earned him a comeuppance, of sorts. In U.S. v. Silver, the prosecution of the former Assembly speaker on corruption charges, the defense moved to dismiss the indictment citing out-of-court pre-trial statements by Bharara that, they argued, unfairly prejudiced the defendant’s case. While refusing to dismiss the indictment on these grounds, Southern District Judge Valerie Caproni gave Bharara the equivalent of a judicial spanking: “The U.S. attorney, while castigating politicians in Albany for playing fast and loose with the ethical rules that govern their conduct, strayed so close to the edge of the rules governing his own conduct that defendant Sheldon Silver has a nonfrivolous argument that he fell over the edge to the defendant’s prejudice.” The judge found particularly troubling remarks by Bharara that she viewed as an improper “commentary on the character or guilt of the defendant.” Such improper commentary has the potential, at least, to damage a criminal defendant’s Sixth Amendment right to a fair trial. Beyond that, when assistant U.S. attorneys complain to federal judges about improper extrajudicial comments made by defense attorneys, they should not have to be met with the retort: “Well, what about what your boss said at his press conference announcing the indictment in this case?”
The American Bar Association’s Rules of Professional Conduct as adopted by state Legislatures limit what lawyers can say—that is, how far they can go on behalf of clients—in briefs, in oral argument and in public statements. But, insofar as the last category is concerned, the rules are limited to what can be said in the context of a litigation or during trial and, in any event, are seldom enforced. Perhaps, it would be best if lawyers avoided the public relations business altogether. Defense attorneys often look foolish and appear incredible when they act as public relations consultants, and prosecutors often appear to be promoting themselves at the expense of the individuals they are prosecuting when they act as such. In Clifford Odets’ gritty 1957 film drama, “Sweet Smell of Success,” one of the main characters, Sidney Falco, is described as “a hungry press agent [who is] fully up to all the tricks of his slimy trade.” If we are to remain a truly honorable profession, we lawyers should get out of the sometimes sleazy public relations business of Sidney Falco and his ilk and return to being what we were trained and admitted to practice as: attorneys and counsellors at law.