Hats off to Prof. Steven Lubet, whose recent Slate article drew our attention to the ethical problem lawyer Michael Cohen has created for himself. Lubet pointed out that Cohen’s claim that he paid $130,000 of his own money to purchase Stormy Daniels’ silence not only exposes him to having violated federal election laws, but given the fact that it was financial assistance to a client in a contemplated litigation, it was violation of New York’s ethical rules that bar paying money for the financial assistance of a client in those circumstances.
Of course, Cohen could have escaped both the federal election law issue and the ethical rule violation, had he said it was not really his own money, just like it was not really his own reputation or possible election victory he was protecting, but that Trump had, one way or another, provided the funds, using Cohen as a front. While those facts would have surprised nobody, Cohen was between a rock and a hard place: Advancing money for Trump’s benefit created one set of problems, but announcing that it was indeed Trump’s money, would have created another problem for him, because Disciplinary Rule 1.8 b) bars a lawyer from releasing information that will “disadvantage” the client. Given that Trump has firmly denied involvement in the matter—even to the extreme of using a fake name and failing to sign the document—an admission by Cohen that his client Trump is, in fact, the mysterious “D.D.,” would certainly be to Trump’s “disadvantage,” both politically and otherwise.
While there are some views in the academic legal community that the Disciplinary Committee should be chary when it comes to pursuing a disciplinary case that, on its face, looks like a political prosecution, I am strongly of the opposite view.
In addition to the appearance of political partisanship, a disciplinary charge against Cohen would likely give rise to a legal counterattack of Trumpian proportions. One could expect a phalanx of Trump lawyers coming to Cohen’s defense, and given Cohen’s reputation as a give-no-quarter bulldog, one could anticipate a huge litigative burden being placed on what is a relatively small and always overworked Disciplinary Committee legal staff.
But like criminal charges, prosecution of ethical misconduct is more important when the transgressor is a public figure than otherwise.
In 1980, when I was appointed Chairman of the Court’s Disciplinary Committee with jurisdiction over lawyers in Manhattan, I learned on my first office inspection tour that there were several files “on ice” because they involved prominent lawyers who would likely bring enormous resources to their defense, and my Chief Counsel feared that any one of those cases would overwhelm the small staff that oversaw the conduct of 40,000 lawyers.
(Small world, it happens that one of those files bore the name of a lawyer who was a counselor to real estate mogul Donald Trump, though the ethical complaints in the file had nothing to do with Trump. That lawyer’s name was Roy Cohn, and he was represented by two distinguished lawyers, both of whom later became federal judges. Indeed, one became a Deputy Attorney General of the United States, and the other The Attorney General of the United States.)
As Chairman of the court-sanctioned Committee, I unambiguously disagreed with the judgment of my staff Chief Counsel, who had shelved the Cohn file. In fact, I fired the Chief, and replaced him with a tough felony prosecutor from Brooklyn, and we pursued with vigor. While the other dust-gathering files were quickly pleaded out, it took six years of tough litigation to bring the Cohn disbarment proceeding to a conclusion. En route, Cohn publicly accused me of being a “crackpot,” a “left winger,” a “deadbeat,’’ and compared my team’s tactics to those of Sen. Joseph McCarthy—tactics Mr. Cohn knew better than anyone else. Interestingly, as part of the trial proceedings, Cohn called to the stand a wave of his supporters who swore to his “good character.” No surprise, future President Donald Trump was one of them.
The battle was worth it: A unanimous court ultimately gave us everything we sought: News of Cohn’s disbarment filled the entire front page of the New York Daily News.
The moral: The big ones, the tough ones, the public ones, are more important than the easy ones. Prosecution, be it criminal or ethical, sends an important message to the community. The current Cohen/Trump trashing of ethical values deserves our serious attention.
Martin London is a retired partner of the law firm of Paul, Weiss, Rifkind, Wharton & Garrison. He was the court-appointed Chairman of the Departmental Disciplinary Committee of New York’s First Judicial Department from 1980-1986, and he is the author of The Client Decides, published in 2017.