Joel Cohen

Many a 1970s-era corporate lawyer was conservative throughout. He—then, almost surely a “he”—had the job of advising his clients of the risks and downsides of the proposed strategy. Typically, and understandably, he would be largely concerned that the client didn’t run afoul of loan guarantees or the questioning eyes of investors.

While there were, of course, some lawyers who saw beyond the client’s financial bottom line, there were also those who didn’t care a whit about the moral vision of the corporation or its leader(s), the adverse impact his advice might have on the citizenry—other than the board and maybe the shareholders—or the potential for criminal charges other than as they impacted the corporate welfare if the client took a different path than he advised. Yes, many a lawyer strutted proudly in their Paul Stuart suits, uninterested in advising on anything but the financial impact of an action. And, indeed, that was then, and often nowadays is, his role.

Which takes us to the extraordinary movie, The Post. Katherine Graham’s father owned the paper; only when her husband died did she became the publisher. She was the lone woman in the room, often literally. The Post chronicles her brave decision to publish what became known as “The Pentagon Papers,” during the very brief period in which The New York Times was restrained from publishing the documents by federal judge Murray Gurfein in New York. Non-lawyers watching the movie probably viewed The Post’s lawyers in a bad light—white-shoed merchants singularly focused on keeping the client’s balance sheet in order.

But one of The Post’s lawyers, at least as depicted in the movie, Roger Clarke, was different. He angrily, and passionately, counseled Graham and legendary Post editor Ben Bradlee precisely about the “criminal” dangers of publishing in the face of The Espionage Act. As the movie portrayed, he was also worried that they could, in effect, be in contempt of Judge Gurfein’s restraining order even though it was not directed at The Post, because both it and The Times had presumably received the documents from the same source—Daniel Ellsberg. She ultimately rejected his advice.

Still, despite his (and the others’) admonitions and appeals for caution, Clarke later appeared on behalf of The Post before the U.S. Supreme Court, arguing against the government’s efforts to restrain The Post, as it had The Times. One, however, would have to wonder about Clarke’s bedside manner—or was it that?—in (unsuccessfully) trying to persuade, almost demanding, Graham not to publish. While he was doing his job as a counsellor, it seemed in the movie that he was trying to steamroll Graham into the decision that he himself would have wanted her to make—“don’t publish until the courts decide”— rather than allowing an intelligent client, as Graham certainly was, to make the decision for herself after having been counseled. Both recognized the possibility of incarceration if her “we’ll publish” decision was not ultimately vindicated in the Supreme Court.

So—thank you Steven Spielberg—the movie presents in the starkest of terms something ripe for this column (even if a lay audience might not have paid much attention to the issue as such). That is, what is the ethical obligation, and what are its limits, when the client needs to clearly hear the risks if she could potentially be found to have run afoul of a statute or a court order?

And to put it in the perspective of the Pentagon Papers, what is counsel’s obligation, even though virtually everyone, at the time but particularly in retrospect, would agree that the public would be best served if Graham took the action her conscience dictated? Otherwise put, would it be sufficient for the attorney, especially if the counseling attorney would have actually wanted The Post to publish (apparently not the case here), to simply tell the client that there’s a risk that if the appeal goes badly, you might go to jail—but you decide! After all, he would have been “on record” about the potential downside of publishing, and therefore bulletproof in the event of claimed malpractice.

An attorney is also an advisor, who “shall exercise independent professional judgment and render candid advice” and express an “honest assessment” of the matter. NY Rule of Professional Conduct 2.1 and c. 1; ABA Model Rule of Professional Conduct 2.1. But should—can—lawyers offer moral advice? Prof. Monroe Freedman argues that lawyers are accountable and “should counsel the client regarding moral aspects of the representation.” Yet, once a lawyer undertakes the representation, “it would be immoral as well as unprofessional for the lawyer … to deprive the client of lawful rights that the client elects to pursue after appropriate counseling.” Monroe Freedman, Abbe Smith, Understanding Lawyers’ Ethics, 4th Ed. §4.04.

The Rules indeed permit a lawyer to let the client know his own moral views of the matter. The lawyer “may refer not only to law but to other considerations such as moral, economic, social, psychological and political factors … .” To go further, because advice couched in legalese may be of little value, it “is proper for a lawyer to refer to relevant moral and ethical considerations,” particularly as they may influence how the law will be applied. NY and ABA Rule 2.1, c. 2.

A lawyer has an unambiguous duty to tell the client, in no uncertain terms, the risks inherent in a potential course of action. NY and ABA Rule 1.4. But—as we all know—there are ways to tell, and ways to tell. How a lawyer chooses to implement his status as the client’s fiduciary, or even call it consiglieri in the finest sense of the word, may be idiosyncratic to the lawyer or the client, and the relationship that might exist between them. It may indeed be particularly appropriate and ethical for a lawyer to tell her longstanding individual client that “You simply can’t do this!”

However, in counseling a sophisticated client such as The New York Times or The Washington Post, one’s advice would likely be far more nuanced, likely more deferential to the client’s views and ultimate decision-making authority. Just imagine being in the position to counsel the publisher of The Post on the overarching issue of whether to publish when—unlike The Timesyour client hadn’t had the necessary time to comb the millions of words of the Pentagon Papers to determine for itself that the publication wouldn’t pose a significant risk to national security and the very safety of American soldiers. And then, as counsel, defending your client when a court asks that very question.

Now, for certain, most lawyers will never face the weighty (perhaps “ethical”) challenge presented to the lawyers in the Pentagon Papers case—who maybe might later be called upon to defend the very conduct on which they gave advice that might ultimately be considered by the courts as “contemptuous” or even criminal. For a lawyer being asked by the client: “Can I [legally] do this?”—the easiest and most self-protective thing to do might well be to say “no.” This is especially so if the lawyer has serious hesitations and fears that one day (assuming he said “yes”), the client will publicly maintain, maybe even in court, that “I relied on my lawyer’s advice.” But lawyers are duty bound to explain a matter. The very definition of “informed consent” requires the lawyer to communicate information including “material risks of the proposed course of conduct and reasonably available alternatives.” NY Rule 1.0(j); ABA Rule 1.0(e).

No question, in his “zealous representation” of a client, a lawyer cannot counsel a direction unfaithful to his actual legal analysis of the issue, even if that means the lawyer may one day have to defend that advice because of the potential negative reputational fallout. In a perfect scenario, a lawyer should be able to dispassionately lay out the legal, moral and political pros, cons and everything in between and tell his client to decide.

But that is not the real world. So when a lawyer is called upon to say “yay” or “nay,” he needs to dig deep into his basket of analytical skills and legal acumen to ensure that he gives the client the full range of potential upsides and downsides. But I mean—the full range!

Joel Cohen, a former prosecutor, is of counsel at Stroock & Stroock & Lavan. He is an adjunct professor at Fordham Law School. Dale J. Degenshein, special counsel at Stroock, assisted in the preparation of this article.