Robert Duvall playing Tom Hagen in The Godfather. ()
Considering what’s going on the White House, is that what clients look for in their lawyers—someone who can tell them how far they can push the ethics boundaries without breaking the law?
I give Donald Trump credit for two things I never thought I’d say: First, I wish I was a practicing lawyer again. Now that civil liberties are under siege, being a lawyer seems relevant and—would you believe this?—noble. Second, I’m suddenly fascinated by legal ethics.
About my going back to law: Not to worry. I’m not that reckless. (Think of the poor client!)
I’m left, then, with my new obsession with ethics. Last week, I wrote about the White House counsel (“Yo, Where’s Don McGahn?”), wondering about the kind of guidance he gave (or not) to senior officials about avoiding conflicts of interests. My hunch was that he didn’t drive home the point nearly enough. Otherwise, Kellyanne Conway might have stopped herself from telling TV viewers to buy Ivanka clothes, and Trump might not have lashed out at Nordstrom for dumping his daughter’s line. (Actually, maybe only Conway would have behaved differently.)
Since that post, McGahn has surfaced, most recently in the spotlight about the way he handled Michael Flynn’s unauthorized conversations with Russian officials, which led to Flynn’s resignation as national security adviser. I have no idea what McGahn told Trump to do when it came out that Flynn had lied about those conversations. (Flynn told the FBI and Vice President Pence that he did not discuss sanctions against Russia when, in fact, he did.) But this much we do know: According to White House spokesman Sean Spicer, McGahn concluded Flynn’s action wasn’t a “violation of law” though it was a “violation of trust.”
To me, this sums up the ethos of the Trump administration: Law and morality are regarded as traveling parallel paths. And never the twain shall meet.
Trump seems to draw a sharp line between what is legal versus what is morally correct—technically abiding by the former while discounting the latter. Indeed, during the campaign, Trump bragged about how he paid as little in taxes as possible, essentially saying that only stupid people don’t take advantage of what the law allow. And that attitude continues today, as evidenced by Trump’s refusal to divulge his tax filings or disassociate himself from his family business. As he’s stated many times, the conflict of interest law exempts the president.
Which leads me to this question: Is this the kind of distinction clients look for in their lawyers—someone who can tell them how far they can push the ethics boundaries without breaking the law?
The answer is no, says ethics expert Lucian Pera, a partner at Adam & Reese. “Sure, any client who wants to can find a lawyer who’s willing to give technical legal advice and then just shut up,” Pera says. “But that’s not what most lawyers do, and it’s not what most clients want. Most clients desperately want their lawyer to be that trusted counselor.” Otherwise, he suggests, the lawyer would be a mere tool, like Tom Hagen, the consigliere in “The Godfather.”
Whoa. The White House counsel as Mafioso adviser?
I don’t think that’s what Pera is suggesting. Yet, there’s something narrow and chilling about the way legal advice seems to be taken (and perhaps given) in this administration. Where’s the wise counsel in the conflicts mess that keeps surfacing?
In counseling companies, Pera says lawyers consider the “reputational risks” in taking action that might be legal but dubious, weighing: “Is it prudent? What will a client, or former client, or sometime client, think? And how will this look to the public, a judge handling a matter, or to lawyers in our community, or to lawyers in our firm?”
On that score, the Trump presidency is scraping the bottom. Not only is it not avoiding the appearance of conflicts or impropriety, but it seems to flaunt them. For someone with a business background, Trump seems strangely contemptuous of reputation.
“I can’t pretend to explain the current administration,” Pera says. “We all want a government that is actually honest and also appears to be honest.” He adds: “It’s disconcerting that there are early indications that this administration may just not care about that. And that simple, strict compliance with the law is expressly all they care about.”
Tom Hagen, did you make a lateral move?
Contact Vivia Chen at firstname.lastname@example.org. On Twitter: @lawcareerist.