After the FBI’s search of Mar-a-Lago and seizure of voluminous records, former President Donald Trump issued a false and inflammatory statement claiming the search was “not necessary” since he had been “cooperating” and that it constituted “prosecutorial misconduct.” Within hours, Trump lawyers Alina Habba, Christina Bobb, and Lindsey Halligan followed his lead by making additional misleading and inflammatory statements on various public media outlets. A marked increase in violent rhetoric, threats of violence, and acts of violence against federal officials and offices soon followed.
The New York City Bar Association appropriately addressed these comments in a statement, warning of the dangers both to individuals and our system of justice of misleading and inflammatory words by lawyers. The NYC Bar urged lawyers to refrain from such speech but specifically noted that its statement was not intended to be “a review of—or opinion on—the conduct of” the Trump attorneys it mentioned under applicable ethics rules. In this column, we address some of the ethics rules Habba, Halligan, and Bobb might potentially be charged with violating based on their statements related to the Mar-a-Lago search.
Model Rule 4.1(a) provides that “[i]n the course of representing a client a lawyer shall not knowingly . . . make a false statement about material fact or law to a third person.”
Do any of the statements mentioned by the NYC Bar qualify as false? Certainly Halligan’s statement that there “was no issue with document compliance whatsoever” was not true. Bobb’s statement that “there’s just nothing there” is murkier. To what does “nothing” refer? If taken to mean there were no documents at Mar-a-Lago, it is clearly false. If it refers to the legality of the government’s position regarding the search, it also is false.
Some of the statements were qualified. During the DOJ’s negotiations with Mr. Trump, Bobb provided the DOJ with a signed document stating that all items sought by the DOJ had been turned over. This was not true. But Bobb qualified her statement with a provision that it was based on information provided to her. Does this qualification protect her from a criminal charge of obstruction or making a false statement to a federal agent? Good question. Read literally, as Bobb and her lawyer would likely argue, Bobb was simply saying she was told all documents had been turned over, which might or might not be true. It would be difficult for ethics investigators to determine what Bobb had or had not been told.
But is this a fair interpretation of her statement, what a reasonable person reading it would understand it as conveying in light of the circumstances under which it was made? Bobb’s qualification renders her statement worthless to the government officials to whom it was given. What the document in its entirety clearly implies is that Bobb knows what she is talking about. Why else would the document have been created? Why would she sign it, unless she intended it to be read as a reliable statement about the underlying facts, not her mental state?
Similar qualifications appear in statements by Habba. For example, she stated, “my understanding from the attorneys on the ground is that they weren’t given the warrant, they were allowed to see it and it was taken back.” The assertion that appears in the last part of this phrase about the warrant was not true. But, again, it would be difficult for ethics authorities to prove or disprove what Habba’s “understanding” was, what she had or had not been told by other Trump lawyers who had personal knowledge of receipt of the warrant. Is it likely they would have lied to her?
Habba similarly qualified another statement: “I’m concerned that they [the FBI] may have planted something. At this point, who knows?” Taken literally, this is a statement about Habba’s internal state of mind, what she was concerned about. Again, it would be difficult for ethics authorities to prove what she was or was not concerned about. But the second part of the statement—about “planting” something—implies that Habba had a factual basis for the planting allegation. That allegation was both highly inflammatory and, it appears, not true. Mr. Trump’s legal team now concedes that he had the documents in question—they were not “planted” by the agents conducting the search—and are arguing that it was appropriate for him to have taken and retained them.
An obvious issue with proving a violation of MR 4.1(a) is its knowledge requirement. MR 1.0(f) defines knowingly as “actual knowledge of the fact in question.” Actual knowledge could be a challenge to prove, depending on how one construes the statements.
Model Rule 8.4(c) provides a more promising route for ethics authorities. It states that it is misconduct for a lawyer “to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” This rule has two key features that distinguish it from MR 4.1(a). First, its conduct language—dishonesty, fraud, deceit, or misrepresentation—is much broader than MR 4.1(a)’s prohibition of false statements. Second, it imposes no knowledge or other mental state requirement.
This silence on mental state supports an inference that either no mental state at all is required or, perhaps more plausibly, a culpable mental state less than knowledge, such as recklessness, suffices. Many courts have concluded that violation of MR 8.4(c) does not require proof of intent to deceive and that recklessness regarding the truth is sufficient culpability. Two arguments support this interpretation. First, MR 8.4(c) should be interpreted within the context of the Model Rules in their entirety. When the drafters of the Model Rules intended to impose a knowledge requirement, they did so explicitly as in MR 4.1. Therefore, the lack of a knowledge requirement in the text of Model Rule 8.4(c) indicates an intent not to require knowledge to establish a violation.
Second, the language chosen to express the conduct requirements in MR 8.4(c) strongly suggests that MR 8.4(c) can be violated with mental states such as recklessness or negligence regarding the truth. The word “misrepresentation,” for example, is often associated with the mental states of negligence and recklessness as well as the mental states of knowledge and intent. California, for example, recognizes negligent misrepresentation as a crime. Reckless misrepresentation in some circumstances is also a crime in many states.
Recklessness requires deviation from a standard of reasonable behavior. In the legal ethics context , that standard is how a reasonable and ethical lawyer acts. Model Rule 1.1 requires a lawyer to act competently with the “thoroughness and preparation reasonably necessary.” Comment [5] spells out that competence requires “inquiry into and analysis of the factual and legal aspects of the problem.” Similarly, MR 3.1 provides that a lawyer “shall not . . . assert or controvert an issue . . . unless there is a basis in law and fact for doing so.” Comment [2] makes clear that “What is required of lawyers . . . is that they inform themselves about the facts of their clients’ cases. . . .” Accordingly, before speaking to the media about a matter of such great interest and importance to their client and the public as Mr. Trump’s potential criminal liability, Bobb, Habba, and Halligan were certainly required at the least to make reasonable inquiry into the factual basis (or lack thereof) of the claims they made.
Could Halligan possibly have done a reasonable factual inquiry prior to saying there was “no issue with document compliance whatsoever” when it is clear that the search was preceded by long, protracted, and unsuccessful attempts by the government to achieve compliance? Could Habba possibly have done a reasonable factual inquiry about whether the warrant was given to Mr. Trump’s lawyers at the scene of the search? Or about whether the FBI planted the documents seized during the search? Habba followed this statement with the rhetorical question, “Who knows?” This statement of uncertainty about the truth of such a serious claim as planting evidence itself manifests recklessness about the truth.
Could Bobb possibly have done a reasonable inquiry into the facts and law prior to stating, “there’s just nothing there”? If “nothing” refers to documents at Mar-a-Lago, it certainly misrepresented the facts, and Bobb was at the very least reckless for not having known this. If by “nothing” she meant there was no legal basis for the search or the possible felony charges against Mr. Trump, at the very least Bobb was reckless in not informing herself about the relevant facts and law.
What about the inflammatory nature of the statements made by Habba and Bobb about the FBI? Do they constitute potential ethics violations? One possibility is violation of MR 4.4 dealing with respect for the rights of third persons.
The context in which these statements were made is essential to assessing their foreseeable impact on people such as the judges and FBI agents involved in the Mar-a-Lago investigation and on the justice system more broadly. One key contextual factor is the unprecedented level of violent, insurrectionist action and rhetoric in the time leading up to and during which these statements were made, exemplified by the January 6 assault on the capitol. Another key contextual factor is the fact that these lawyers surely knew the statements they made would be repeated and amplified through the many media outlets that cater to and are dominated by extremists likely to be incited to violent rhetoric and action.
MR 4.4(a) states that “a lawyer shall not use means that have no substantial purpose other than to embarrass . . . or burden a third person.” Many third persons were burdened in the wake of the Mar-a-Lago search, such as the FBI agents and judges threatened or attacked. The disparaging statements by Bobb and Habba about the FBI clearly could have helped fuel these attacks. What, though, were Bobb’s and Habba’s purposes in making these statements? Ethics authorities are unlikely to have access to direct evidence of whether Bobb or Habba had a purpose that violates MR 4.4, so they are likely to look at circumstantial evidence of an illicit purpose. Motive may be useful here. What purpose other than harassing the agents might Bobb and Habba have had in making their serious, clearly incendiary, and unsupportable comments impugning the integrity of an entire agency?
Model Rule 8.4(d) states: “It is professional misconduct for a lawyer to: . . . (d) engage in conduct that is prejudicial to the administration of justice.” Courts have held that the conduct must be connected in some way to a judicial proceeding. That requirement appears to be fulfilled because the statements criticized by the NYC Bar commented on a search conducted pursuant to a judicially issued search warrant as well as efforts to enforce a Grand Jury subpoena. Publicly and falsely stating that a search warrant issued by a federal judge is without a factual or legal basis and claiming that federal law enforcement agents acted illegally to “plant” evidence could easily be viewed as impeding the proper functioning of the legal system by undermining public confidence in and helping incite violence against key participants in the legal system.
In our view, there are a number of ethical violations ethics authorities could potentially pursue against these three lawyers. In contesting these, each lawyer would likely emphasize the “letter” of the law, whether or not what they did fits easily within the language of one or more rules. In part because we have no prior experience of a president or a president’s lawyers engaging in the sort of misconduct we see rampant today, it’s perhaps not surprising that there is not one particular rule that is a precise fit for the sort of statements made by these lawyers and condemned by the NYC Bar. But there is no question that what these lawyers did was contrary to the spirit that underlies our ethics codes.
