A number of lawyers associated with President Donald Trump, within and outside his administration, have faced ethical challenges. While the ethical issues for President Trump’s personal lawyer Michael Cohen have grabbed the most headlines, recently revealed actions of Acting U.S. Attorney General Matthew Whitaker on behalf of World Patent Marketing, a company the Federal Trade Commission (FTC) accused of bilking millions of dollars from consumers, raise serious ethical questions. (Whitaker Knew of Fraud Complaints While at World Patent Marketing: Documents, Reuters (Nov. 30, 2018).) Among these questions are Whittaker’s using his title and position as a former U.S. attorney in Iowa in letters long after he had left that position and adopting and forwarding statements prepared by others in responding to complaints about World Patent Marketing.
Is it ethical for a former, high-ranking government lawyer to use his or her title and position after leaving office? May a lawyer adopt, incorporate, and present statements prepared by others as the lawyer’s own work without personally verifying the statements? In this column, we explore these and related questions.
Former Government Lawyers Using Titles in the Practice of Law
There are no advisory ethics opinions addressing whether a former government lawyer is permitted to use his or her former title after leaving the position. But the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility has addressed the analogous issue of a former judge using the title “judge” in the practice of law. (ABA Formal Op. 95-391 (1995).) In that opinion, the Committee examined whether a former judge who engages in the practice of law may refer to himself or herself as judge in various contexts, such as on letterhead, in correspondence and pleadings, or otherwise in connection with legal proceedings.
The Committee focused primarily on two rules, Model Rules of Professional Conduct 7.1 and 8.4(e). Model Rule 7.1 states:
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it: . . . (b) is likely to create an unjustified expectation about the results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the rules of professional conduct or other law.
The Committee concluded that the use of “judge” by a former judge practicing law is misleading because
it is likely to create an unjustified expectation about the results a lawyer can achieve and to exaggerate the influence the lawyer may be able to wield. In fact, there appears to be no reason for such use of the title other than to create such an expectation or to gain an unfair advantage over an opponent.
(ABA Formal Op. 95-391.) The Committee identified several state bar associations that reached the same conclusion. No ethics opinions approve of a former judge using a judicial title in the practice of law.
The Committee also expressed concern that the use of the former title might constitute professional misconduct under Model Rule 8.4(e), which prohibits stating or implying “an ability to influence improperly a government agency or official.” The Committee stated: “In certain contexts, the use of the honorific might be considered to have such import.” (Id.)
The same concerns arise when a former government lawyer, such as Whitaker, uses his or her former government title in the practice of law. Some examples of how Whitaker used his former title illustrate this point.
Whitaker used his former title to advance his client’s interests in at least two ways. First, as an advisory board member of and lawyer for World Patent Marketing, Whitaker used his former title to vouch for the trustworthiness of his client when he said, in a news release, “as a former U.S. attorney, I would only align myself with a first-class organization.” (Adam Goldman & Frances Robles, Acting Attorney General Sat on Board of Company Accused of Bilking Customers, N.Y. Times (Nov. 8, 2018).) The press release continued, “World Patent Marketing goes beyond making statements about doing business ‘ethically’ and translates those words into action.” (Id.) These statements now appear to have been false.
Whitaker made his statements vouching for the integrity and trustworthiness of his client in the face of consumer complaints and at the same time that the FTC found that his client was “bilk[ing] thousands of consumers out of millions of dollars.” (Id.) Whitaker’s vouching for his client was calculated to lend respectability to a business that was not in fact respectable and mislead consumers whom the FTC found had been bilked.
Second, court documents filed by the FTC show that the company’s president, Scott Cooper, “used Mr. Whitaker to threaten them [frustrated consumers] as a former federal prosecutor.” (Id.) For example, Whitaker used his law firm’s email to tell one person complaining about his client that he was a former federal prosecutor and that “there could be serious civil and criminal consequences for you” if the man filed a complaint with the Better Business Bureau. (Id.) In dealing with a former associate of Cooper in a dispute, Whitaker “pointed out that he was a former U.S. attorney in Iowa. ‘I am familiar with your background and your history with Scott,’ Whitaker wrote. ‘Understand we take threats like this quite seriously.’” (Greg Farrell et al., FTC Emails Show Whitaker Fielded Gripes on Miami Firm, Bloomberg (Nov. 30, 2018).)
In reviewing the FTC documents concerning World Patent Marketing, which settled an FTC complaint by agreeing to pay $25 million and accepting a ban from the patent promotion business, one reporting team concluded, “A key takeaway from the FTC documents is that World Patent Marketing used Whitaker’s background as a U.S. attorney to impress potential clients and bully perceived enemies.” (Id.) A columnist for Vanity Fair reporting on Whitaker’s work for World Patent Marketing commented, “Whitaker’s most crucial role was arguably in using his prior work as a federal prosecutor to intimidate people when they realized the company was a scam.” (Bess Levin, Trump’s New A.G. Worked for Scam Firm That Threatened Victims with Krav-Maga Style Beatdowns, Vanity Fair (Nov. 8, 2018).)
We believe that Whitaker’s use of his formal title and position as a U.S. attorney in Iowa served an improper purpose. In vouching for his client, Whitaker used the title and prestige of his former position to promote his client as a trustworthy and credible company, when, in fact, it was not. In referring to his former government position and title when fielding valid consumer complaints and dealing with a former associate of the company’s president, Whitaker implied that he had the ability to wield special expertise and influence in resolving matters favorably for his client in order to intimidate those at odds with World Patent Marketing. In both contexts, we believe Whitaker’s use of his former title was improper.
What About Using Former Titles in Other Contexts?
Again, there is no ethics authority directly on point considering former government lawyers using their former titles in other contexts, but the ABA ethics opinion concerning former judges using their prior judicial titles is instructive. When used outside of the practice of law, the Committee found that a judicial honorific would not be misleading, nor would it suggest some type of special influence, except in a situation where the former judge appears as an expert witness in a legal proceeding. (ABA Formal Op. 95-391 (1995).) The Committee also emphasized that “it is perfectly proper for a former judge to inform potential clients of his prior judicial experience,” provided “the description is accurate, and does not convey an implication of special influence.” (Id.)
The same reasoning holds true for a former government lawyer. The lawyer may list the former government title in his or her biographical information provided the description is accurate and does not imply special influence.
Under this analysis, when a former judge or government lawyer is not practicing law or appearing in a judicial proceeding in some capacity, using a former title for identification purposes would be proper. Former judges and former government lawyers frequently appear as commentators on television and in other media concerning trials, criminal investigations, important court decisions, and other legal matters. Using their former titles for identification purposes is appropriate and helps explain to the public both the commentator’s perspective and relevant experience.
Adopting and Incorporating Language Prepared by Others
Emails between Whitaker and Cooper indicate that Whitaker adopted Cooper’s position that complaints against the company and Cooper lacked merit without Whitaker inquiring into the basis of the complaints. It also appears that Whitaker adopted language prepared by Cooper for at least one letter without independently verifying if the statements in it were true. For example, in August of 2015, “Mr. Cooper sent a proposed draft of a letter he had ghostwritten for Mr. Whitaker to send to the complainer, invoking his status as a former federal prosecutor and member of the firm’s advisory board and threating the man with ‘serious civil and criminal consequences’ for what he suggested was tantamount to blackmail or extortion.” (Charlie Savage et al., Whitaker’s Ascent at Justice Dept. Surprised Investigators of Firm Accused of Fraud, N.Y. Times (Nov. 30, 2018).) Whitaker made a few minor changes and sent the letter off after spending approximately six minutes reviewing it. (Id.)
Whitaker’s actions in adopting Cooper’s letter and sending it off as his own raises at least two additional ethics issues. First, Model Rule 1.1 states that a lawyer must provide competent representation, which “requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” In representing a company accused of wrongdoing, such as World Patent Marketing, the duty of competence required Whitaker to investigate the basis and merits of the complaints. Simply parroting or relaying the client’s position without any research or investigation is not, in our opinion, consistent with that duty.
Second, Whitaker’s forwarding of Cooper’s letter as his own raises issues of diligence, required by Model Rule 1.3. Diligence demands that a lawyer perform the work for which the lawyer is hired. The duty of diligence would be violated if Whitaker used the work of Cooper and did not ensure that the work adopted was accurate, was relevant, and had a sound basis in law. In our opinion, it is inconceivable that approximately six minutes was sufficient time for Whitaker to vet the facts and legal basis of Cooper’s letter.
Whitaker’s role in conveying Cooper’s letter as Whitaker’s own likely falls short of violating Model Rule 8.4(c), which states: “It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” ABA and state ethics opinions uniformly hold that a lawyer acts deceptively and violates Model Rule 8.4(c) when a lawyer permits clients to use the lawyer’s letterhead, or prosecutors and states attorney generals allow use of their letterhead for debt collection purposes. We analyzed this situation in a prior column. (Misuse of Letterhead by Prosecutors and Attorneys General, 30 Crim. Just., no. 4, Winter 2016, at 48.) Unlike letting the client use his letterhead, Whitaker presumably read Cooper’s letter and adopted it as his own. While this is ethically questionable for the competency and diligence reasons discussed above, it would not trigger the same Model Rule 8.4(c) concerns about dishonesty, fraud, deceit, or misrepresentation as it would if Whitaker gave his letterhead to Cooper for his use on behalf of himself and World Patent Marketing.
We suspect that other former government lawyers have used and are using their former positions and titles in ways similar to Whitaker. We believe it is time for the ABA and state bar authorities to issue guidance on this matter. Advisory ethics opinions similar to the ones issued concerning the use of judicial titles by former judges are long overdue.