Legal ethics: from the White House to the doghouse

How far is a lawyer permitted ethically to go in assisting a client? Politics aside, this is the big question presented by what has been going on regarding the frantic efforts of White House lawyers to (1) lock down a transcript of a call in which President Donald Trump allegedly sought assistance from the president of the Ukraine to benefit Trump in the upcoming 2020 election, disclosed by a whistleblower; and, (2) delay the delivery of the whistleblower's complaint to Congress, although Trump has not asserted executive privilege to its contents. Ethics observers have raised questions about the conduct of the government lawyers regarding both the lock down and their apparent efforts at a coverup.

The challenge appears related to Trump's July 25 telephone conversation with Ukraine President Volodymyr Zelensky. Over objections of some of his White House advisors, Trump released a five-page summary of the call that revealed the president asked Zelensky to investigate political rival Joe Biden just as the president withheld hundreds of millions of dollars in military aid to the Ukraine.

From where I sit, having been admitted to the California Bar in 1961 when most lawyers toed the mark, where even advertising by members of the bar was not permitted, I am incredulous that even in instances as critical as the present there are those in our profession who no longer seem to respect the rules of ethics by which we must practice. It appears to be an attitude of open season on what we can get away with or whatever explanations will fly.

It has been alleged the transcript of the conversation, as well as several other similar instances involving calls to other leaders, have been locked down in a special secret server intended solely for highly sensitive situations involving national security. Conversations dealing with purely political matters such as this do not qualify for the lock down procedure, even to protect the president and the White House. It is obvious, as some have said, the server was improperly used simply to remove the politically relevant evidence from the public eye.

The whistleblower claimed administration sources said Trump moved to "abuse his office for personal gain" when speaking to Zelensky about Biden in July, then tried to restrict the conversation. The complaint and a transcript of the call are the basis for House Democrats' present impeachment inquiry. Potentially this has provided the House with the substance of an impeachable offense, Trump in effect abusing his office to help himself, and contradicts the president's insistence that he is always placing "America first."

Added to this is the fact recently it has been uncovered that Attorney General William Barr and Secretary of State Mike Pompeo have been involved in the plotting to protect the president in several ways, not the least of which is denying their knowledge of the Whistleblower call and attempting to prevent witnesses from testifying concerning events within their knowledge.

From the standpoint of legal ethics, where does this leave the White House lawyers who rushed to achieve the coverup? It is important to note former White House counsel Don McGahn left his position some time ago because of his concern, among other things, regarding the ethical questions presented by what he was asked to do by the president. His legacy in the White House is a mixed bag of both helping protect the president's conservative agenda, mainly by seeing to it conservatively oriented judges were appointed to the nation's federal courts (including the Supreme Court) and preventing worsening scandals inside the administration.

American Bar Association Model Rules of Professional Conduct, rule 1.2 (d), Client-Lawyer Relationship, provides that a "lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law."

Thus, it is clear a lawyer may not lawfully further the illegal purposes of the client Irrespective of what if any discussion took place concerning "the legal consequences of any proposed course of conduct." The train of such prohibited conduct by White House lawyers has long since left the station as we see relevant witnesses being blocked from testifying. Also, there have been threats to expose the whistleblower's identity in contravention of the law protecting such persons, and warnings to state department personnel to avoid testifying if called.

Adding to the consternation of the current events is the role played by the president's alleged personal lawyer Rudy Giuliani, who is running around the world seemingly exacerbating the problems facing the president. Pursuant to ABA Rules of Professional Responsibility, Rule 1.1: discussing competence in the client-lawyer relationship, a "lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."

Considering this rule, it would appear Giuliani has failed to satisfy his responsibility thereunder. As such, it would seem an accurate assessment by New Yorker (The Daily, Oct. 2, 2019) magazine labeling him a "One-Man Wrecking Crew ... luring Trump into the Ukraine folly," and at the same time dragging Barr and Pompeo into the fray. Based on Giuliani's own statements there is an uncertainty whether he has been acting as the lawyer for the president, and therefore able to invoke the attorney-client privilege when questioned under oath, or simply as a private citizen erratically floundering in all directions without any protection against the subpoena process.

It is sad we have reached this point in our history regarding the increasing inclination of lawyers to ignore ethical restraints, but even more disquieting is the Sept. 30 assessment reached by Washington Post columnist Michael Gerson that "the most alarming spectacle is... an American president who doesn't understand the meaning of America." 