Every now and then, it’s fun to take a story prominent in the day’s headlines and unearth the Professional Responsibility issues that may quietly be driving the plot. (Here’s another one.) For those of you who found your required law-school course in Professional Responsibility tedious, irrelevant, or worse (sadly, that’s many of you), I live in hope that these efforts may highlight some of the genuinely gripping features of the subject that you may have missed out on the first time through. Recent news provides us with another chance to Make Ethics Great Again.
The background. According to the New York Times (here, here, here, and podcast here), two senior lawyers leading President Trump’s personal legal team responding to the Russia investigations, Ty Cobb and John Dowd, had lunch at the BLT Steakhouse last week. Cobb, who recently resigned his partnership in the prominent Washington-London law firm Hogan Lovells (formerly Hogan & Hartson) to accept the engagement representing the President, reportedly sounded off to Dowd about some recent developments with sufficient enthusiasm to be overheard by a Times reporter who happened to be eating at a table nearby.
The material was journalistic gold, and the Times cheerfully reported it a few days later (the intervening time presumably consumed by consultations with the Times’ renowned legal staff, efforts to fact-check with the White House—oh, to have a recording of those conversations!—and some serious cogitation by senior editors). The Times reported that, among other things, its reporter overheard Cobb reporting to Dowd:
- That the President’s personal legal team was in regular and direct conflict with the White House Counsel’s Office, led by former Jones Day partner Don McGahn, with relations so adversarial that Cobb was concerned that one of the lawyers working for him had been enlisted by McGahn as his “spy”;
- That in particular Cobb and McGahn pointedly disagreed about how to respond to pending congressional document requests and grand jury subpoenas, with McGahn apparently insisting on the assertion of Attorney-Client and Executive privileges whenever they were arguably available, and Cobb favoring an open-handed approach less concerned with asserting and preserving potentially applicable privileges; and
- That Cobb believed (in the Times’ words, quoting Cobb in part) that “McGahn had ‘a couple documents locked in a safe’ that he [Cobb] seemed to suggest he wanted access to.”
The Times’ fact-checking efforts brought the luncheon conversation to McGahn’s attention, which according to the Times prompted McGahn to “privately erupt” at Cobb, and caused White House Chief of Staff John Kelly to “sharply reprimand” Cobb for his “indiscretion.” Cobb in turn “sought to defuse the conflict in an interview over the weekend,” said the Times, “praising Mr. McGahn as a superb lawyer” and an awesome guy with whom he has always been able to “professionally” “work . . . out” “differences of opinion” and “reach consensus.”
Thus was peace restored in the Great White House, with harmony prevailing ever after. Or as discussed below, maybe not.
So what? Some of you, I suspect, are simply buoyed or dismayed by this story depending on your political sympathies. The Trump Administration has distinguished itself throughout its brief duration as an unusually unruly and venomous collection of scorpions in a jar even by Washington standards. This episode could easily be seen as just a little more of the same, and something that you either enjoy or regret depending on your feelings about the Administration and your degree of concern about what the Russia investigations might eventually uncover.
But you said there was an ethics angle. Indeed I did. For we few, we happy few, we band of brothers and sisters who discern and chronicle the mysterious ways that legal ethics frames and forms professional habits and behaviors, this is a dark fable whose moral has yet to be revealed. Any Ethics Geek who read the Times’ reportage could only have sharply drawn breath and loudly exclaimed (in the prevailing social media style) WTF? WTF’in’F?
Let me tell you why, after the jump.
As narrated by the Times reporter who did the overhearing at the restaurant,
The interaction didn’t seem to trigger concern from Mr. Cobb and his dining partner [Dowd]. To my astonishment, they were in the midst of a detailed discussion of the Russia investigations being conducted by the special counsel, Robert S. Mueller III, and various congressional committees, as well as the strategy of Mr. Trump’s team for responding.
They were in a public place where they could have been overheard by anyone. I just happened to be a reporter, and I did not misrepresent myself, so I figured their conversation was fair game. I ordered another iced tea, pulled out my phone and began typing out notes, hoping that they would assume I was merely responding to emails, tweeting or surfing the internet.
Remember the duty of confidentiality? Under Model Rule of Professional Conduct 1.6, anything a lawyer learns “relating to the representation of a client” must be kept confidential unless the client authorizes its disclosure or it meets one of the very limited grounds on which the lawyer may disclose it despite its confidentiality. Lawyers have a duty to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to,” their clients’ confidential information.
This is one of those fundamental principles everyone knows and understands, even if they hated their ethics class and worked hard to forget it. Consequences for breaching this duty can be severe, from professional discipline to civil liability for legal malpractice. Not to mention having to cope with a justifiably enraged client, private details of whose legal travails just got splashed across the front page of the New York Times. And in BigLaw firms with high-profile practices, young lawyers are drilled from the day they arrive always to be conscious of their surroundings and, to avoid being overheard, never discuss confidential information in public places such as elevators, sidewalks, trains, airplanes or even their own office lobby or restrooms. Or, um, restaurants. The training always mentions restaurants. Yet here was veteran Washington BigLaw white-collar defense lawyer Ty Cobb chatting audibly away about obviously confidential and highly sensitive client information in a restaurant on the same block as the New York Times Washington bureau, while his co-counsel, equally veteran Washington white-collar defense lawyer John Dowd, never once warned him to save it for the office, get a private dining room, or at least pipe down. WTF?
Was Cobb a slob? Implausible. One possible explanation, of course, is that these old-hand Washington lawyers just made a rookie mistake. These guys are no rookies, but experienced lawyers do occasionally commit such gaffes. (For example, there are well-documented stories of BigLaw partners conducting easily audible cell phone conversations in public places about confidential firm business or important client matters (e.g., here)). But it beggars plausibility to suggest that two deeply experienced Washington white-collar litigators, representing an embattled President of the United States on issues of the highest imaginable profile, both made the same dumbass blunder regarding intensely sensitive tactical and strategic information in a popular DC restaurant located adjacent to the offices of the New York Times. (Isn’t Professional Responsibility just unbearably cool? C’mon, admit it; you’re intrigued.)
Then WTF, Ethics Geek? So if we temporarily rule out human error, what might really be going on? I can think of two possible explanations, and there may be others.
Background: What the President’s personal counsel and White House Counsel were fighting about. In order to understand the multidimensional chess game that, if we give him full credit, Cobb might quite consciously have been playing, we need to pause for a moment and understand the disagreement Cobb reported between himself and White House Counsel Don McGahn. Many readers of this space probably know this already, but just in case let’s be clear about the two lawyers’ respective roles and loyalties. Cobb (and Dowd) represent President Trump personally; their job is to help the President understand his rights and duties, and to pursue his proper objectives by any means within the limits of the law. The White House Counsel’s Office has a more institutional role; while the Office generally takes instruction from the sitting President and considers him or her its “client,” White House Counsel imagine their ultimate loyalties to be owed, at least in part, to the Presidency as an institution rather than any individual President occupying the office. Needless to say, these interests are not always easily distinguished, but they can diverge.
A good example of a situation in which the advice of the President’s personal counsel might diverge from White House Counsel’s is exactly the one Cobb was overheard discussing at lunch with Dowd. As the President’s personal lawyer, you might favor responding to congressional document requests or grand jury subpoenas in this particular situation on behalf of this particular President fully, openly, and all at once, with less or perhaps even little regard to whether you were waiving Attorney-Client or Executive Privilege by producing certain documents. You might well want to get everything out there, even if some of it is a little embarrassing or portrays the President in a less than flattering light, because if you get it all out there at once, less of it will work its way into the news because of the time constraints of the news cycle; whatever outrage the haters are inevitably going to express will crest, break and calm down; and you can move on to whatever’s next. The alternative is the awful drip, drip, drip of a protracted investigation in which material is produced in tranches as demands escalate; there are numerous fights over privilege and similar issues; and things drag on for months or even years while public trust and support crumble. The latter is how Richard Nixon played his hand, and it made a very bad situation much worse.
Of course, getting it all out there as quickly and completely as possible is ultimately a good tactic only if there is nothing incriminating (or otherwise politically lethal) in what you get out there. Nixon played his hand the way he did because he had to—the cards he was trying to withhold were irremediably poisonous to his tenure in office.
Cobb described his position during that fateful luncheon as the “get it all out there” approach, and asserted that McGahn pointedly disagreed. The latter is quite plausible. From the standpoint of White House Counsel, this President should assert Executive Privilege (and probably Attorney-Client Privilege too) at every reasonable juncture—even if what is being withheld is innocuous or better—in order to preserve (precedentially) that option for future holders of the office. (And also to avoid contention of some broader waiver in this investigation of this president.) Executive privilege, like all privileges, withholds relevant evidence from the truth-finding process in the service of some counterbalancing concern—classically described here as candor in seeking and receiving advice about the President's performance of the responsibilities of his office, just as the attorney-client privilege is said to encourage and protect candor in seeking and receiving legal advice. (And before I have to endure any snark in the Comments, let me observe that the scope of Executive Privilege is still widely debated, and the very availability of the Attorney-Client Privilege to the President is disputed if not doubtful, with at least two circuit-court level decisions holding that the President has no Attorney-Client Privilege, at least as to advice from White House Counsel sought by grand jury subpoena.)
If a particular President starts producing privileged material because it is innocuous and because “getting it all out there at once” is politically expedient in that particular instance (saying, in other words, “I have nothing to hide—look!”), then any future President who asserts Executive or Attorney-Client Privilege will be accused of hiding things. We avoid that problem in the litigation realm by instructing factfinders not to draw adverse inferences from the assertion of a privilege. However effective (or not) this instruction may be in litigation, it is largely useless in the court of public opinion. Which is why McGahn reportedly is pressing the approach attributed to him—if every President always asserts reasonably available privileges, then all future Presidents will have political cover each time they do so too. (Richard Nixon justified his assertions of Executive Privilege on exactly these grounds—that he was protecting not his presidency, but the Presidency by refusing to produce tapes of conversations between Nixon and his advisors about the Watergate coverup. In United States v. Nixon, the United States Supreme Court explicitly recognized the existence of an Executive Privilege, arguably for the first time, but enforced Special Prosecutor Leon Jaworski’s grand jury subpoena for the tapes for reasons that have been explained variously since.)
We’ve been waiting a long time now, Ethics Geek. WTF at the BLT? Okay, now we’re ready to speculate (and I stress that I am speculating) about what Cobb might have been doing at the BLT Steakhouse last week. Let’s assume for purposes of discussion that Cobb was deliberately speaking loud enough to be overheard at a place where he knew it was highly likely that a journalist—or a lawyer, public employee, or citizen hostile to the Administration who would notify a journalist—would overhear him.
First Possibility: Disinformation. Perhaps Cobb wants the public to discover the purported “secret” conflict between the President's personal counsel and White House Counsel about asserting privileges and withholding documents, because the supposedly inadvertent revelation will make it more plausible to more of the public that the President really has nothing to hide. Nobody but the most diehard Trump supporters would believe this if the President or his lawyer voluntarily announced it (“I really want to show you there’s nothing here, believe me, but they tell me I can’t do that”), especially after Watergate (and the Iran-Contra scandal, and Bill Clinton’s various indiscretions, and the scandal over the Bush 43 Administration’s politicization of the Justice Department), and especially with this President’s track record with the truth. But it all becomes considerably more credible if the “secret” view of the President’s own lawyer is “discovered” in this fashion. Then, when McGahn “wins” the internal dispute and the President asserts Executive and Attorney-Client Privilege, it is easier to argue that he is simply protecting the institutional prerogatives of the Presidency rather than abusing a privilege to bury incriminating evidence. Whether the White House is really trying to hide incriminating documents or really does have nothing to hide and just wishes to protect Executive Privilege while attenuating the implication that it is trying to hide something, this is a clever tactic. And either Cobb could be pursuing the plan unilaterally, taking advantage of the disgust it would predictably elicit from McGahn and Chief of Staff Kelly, or the two of them could actually be in on the joke too, and staging their eruptions and reprimands as part of a bigger plan to help make the point. Politics ain’t beanbag.
Second Possibility: True Ethical Qualms. In this alternative scenario, Cobb again contrives to be overheard on purpose and wants the public to think it was an accident. But in this view it’s a disguised voluntary disclosure of confidential information or a species of “noisy withdrawal.” Let me explain:
The fact that points in this direction is Cobb’s reported statement that McGahn has “a couple documents locked in a safe” that Cobb wants to get his hands on. It’s easy to interpret this statement as a concern that the West Wing may be concealing or destroying incriminating documents. (All the other facts point more strongly to the “disinformation” theory just discussed.) Only time will tell, but Cobb may be worried about that possibility as a matter of public morality, and may also be worried about it as a matter of self-protection. (Don’t forget that Nixon’s White House Counsel, John Dean, and his personal attorney, Herbert Kalmbach, both went to prison, though in Kalmbach’s case it was for bribery and campaign-finance crimes rather than the hush money he also raised for the Watergate burglars.) Cobb, we might imagine, simply as a matter of good government does not want to see a President flouting a grand jury subpoena or his representatives lying about what responsive documents may exist, nor is he likely to want history to remember him as having some part in it. And he really doesn’t want to go to prison for contempt, perjury, obstruction of justice, or conspiracy for undertaking what he initially thought was a public service representing the President of the United States.
If this is the case (and I stress that we really don’t know whether it is at this point), then accidentally-on-purpose leaking the existence of documents locked away in McGahn’s safe can be seen as a tactic designed, at minimum, to discourage the West Wing from destroying those documents or pretending they don’t exist. Remember that the existence of any responsive documents withheld from production on grounds of privilege must be disclosed and the factual basis for the claim of privilege described. So if no one mentions these documents in response to a subpoena specifically requesting them, investigators now know to summon McGahn and others before the grand jury (or relevant congressional committee) and ask them about it. If the White House does disclose the withheld documents’ existence but refuses to produce them on grounds of privilege, then the privilege claims can be tested in litigation and the rule of law preserved. And Cobb has cleverly staked a claim, before all hell breaks loose, that he wanted no part of any illegal evasions that may occur.
But wait, I hope you’re thinking, if that’s what’s happening then Cobb just disclosed his client’s confidences contrary to the client’s desires and perceived interests in order to protect himself (or, more charitably, the rule of law). Where does he get off doing that? And what about all that high-minded confidentiality stuff you were spouting off about just a couple of pages back?
Good question. It would indeed be inconsistent with Cobb’s confidentiality obligations and duty of loyalty to his client unless a specific exception to the duty of confidentiality were available. (And now you’re urgently wondering about the various exceptions to the duty, proving once again how drastically underrated PR truly is.) There are about a dozen exceptions scattered through the Rules of Professional Conduct, and they differ in their details from jurisdiction to jurisdiction. Focusing on the District of Columbia Rules as most plausibly governing this conduct, DC Rule 1.6(d) gives a lawyer discretion to (“may”) voluntarily reveal confidential information “[w]hen a client has used or is using a lawyer’s services to further a crime or fraud,” but only “to the extent reasonably necessary” to prevent the client from committing a crime or fraud that is “reasonably certain to result in substantial injury to the financial interests or property of another,” or “to prevent, mitigate or rectify [‘reasonably certain’ and] substantial injury to the financial interests or property of another.” And if the client or a witness offered, or planned to offer, false evidence to the grand jury or supervising District Court, under DC Rule 3.3 the lawyer would need to try to dissuade the client or witness from doing so, or to persuade the liars to correct the record if they had lied already. But the District of Columbia does not impose on lawyers themselves a mandatory duty to correct their witnesses’ factual misrepresentations to a tribunal if doing so requires disclosing confidential information, though the Model Rules and most states do.
These are highly qualified and nuanced exceptions, and the fit between them and what Cobb did (again, assuming that it was a deliberate disclosure of confidential information in the first place) is not easy or obvious. It is possible that Cobb knows, or reasonably believes, that the White House plans to withhold incriminating documents responsive to pending congressional requests or grand jury subpoenas by destroying them, pretending they don’t exist, or claiming Executive (or Attorney-Client) Privilege based on factual misrepresentations. (I’m leaving aside the possibility that McGahn wishes to take an aggressive, but arguable, view of potentially applicable privileges and their effect on particular documents. You may disapprove of such tactics, and the White House may lose, but advancing a defensible view of the law and facts and allowing it to be tested in the courts is what lawyers do, and it simply is not unethical or illegal just because you may lose, though it may or may not be unwise.)
So Cobb might claim he reasonably feared that his client was using his services to further a crime or fraud, but even then the misrepresentations or obstruction he anticipates are not easily characterized as “reasonably certain to result in substantial injury to the financial interests or property of another,” at least in the conventional sense. Cobb also has an obligation to tailor his disclosure to the minimum “reasonably necessary” to prevent or rectify the wrong. Spilling his client’s secrets to the New York Times is not a narrowly tailored disclosure. Similarly, Cobb might argue that he was trying to “dissuade” his client from the bad acts he anticipated by tipping off the Times, but for reasons that I hope are apparent, that’s a big stretch. Even if he had already remonstrated unsuccessfully with McGahn and the President himself, a deliberate disclosure of the existence of secreted documents would be much more an act of disruption than dissuasion in any common sense.
So if you’re so Geeky and all, which one do you think it was? If Cobb was smart enough to have developed this elaborate tactical ruse, then he was smart enough to think through the applications and implications of the relevant Rules of Professional Conduct. If he were wrestling with true ethical qualms, he probably would have gone about it differently. Among other things, it would have been wiser (and probably just as effective) to wait and see what the White House actually does when it responds (which hasn't happened yet), and react to that with a narrower and more focused disclosure, rather than indelibly tattoo his fears about what might happen in the future across the face of the national press. That tends to suggest that the ruse—if it is one rather than just a dumb mistake—was a disinformation effort designed to provide political cover for the noncompliances and refusals we may be about to see in response to the investigators’ demands.
Why, then, refer to documents locked up beyond reach in a safe at all? On one view, that doesn’t tend to inspire confidence that the President has nothing to hide the way a lot of the rest of the lunch conversation could. But maybe the detail was included so that, when the White House squarely discloses the “secret” documents’ existence but withholds production on privilege grounds, the response looks more responsible and complete. That might be used to help sell the proposition that the President isn’t really hiding anything. And that could rationally be part of a disinformation campaign designed to persuade the public that the Russia investigations are the “witch hunt” the President likes to claim they are.
I, for one, can't wait to see what happens.
Next time, perhaps we will take up the awe and mystery of dealing with the unrepresented, and discuss how one of President Trump’s other lawyers, Marc Kasowitz, may have violated DC Rule of Professional Conduct 4.3.
Who’s an Ethics Geek now?