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August 10, 2019

Mueller investigation reflects tricky ethical path for lawyers in high-profile inquiries

Chicago-based attorney Jill Wine-Banks has a unique perspective to view these turbulent times. Nearly a half century ago, she served as a Watergate assistant special prosecutor and now provides legal analysis and commentary for MSNBC on investigations related to President Donald Trump.

But there is a big difference, Wine-Banks said Friday, Aug. 9, at a panel at the ABA Annual Meeting in San Francisco. With Watergate, there was a burglary of the Democratic National Committee in 1972 and a cover-up that led to the Oval Office and the eventual resignation of President Richard Nixon. At the end of the day, the facts were never in serious dispute.

“Watergate sets the stage for where we are now,” Wine-Banks said, coincidentally on the 45th anniversary of Nixon’s departure from the White House. “But now we have two sets of facts and that, you know, is impossible. If you watch MSNBC and then Fox News, you would believe you are in two alternative universes. And you don’t know what to believe.”

Wine-Banks and two ethics law specialists explored the role of lawyers and governmental investigations since Watergate in the program, “Risky Business: The Mueller Minefield and Ethical Dilemmas for Lawyers Involved in Government Investigations.” She was joined by Kathleen Clark, ethics professor at Washington University School of Law in St. Louis, and moderator Bruce Green, a law professor at Fordham University School of Law in New York.

The ABA Journal has reported that congressional investigations of Watergate “exposed the involvement of more than 20 of the most powerful lawyers in the United States.” The list included the president and two U.S. attorneys general, two White House counsel, an assistant attorney general and a chairman of the U.S. Securities and Exchange Commission.

Post-Watergate, the ABA Section of Legal Education and Admissions to the Bar, which is recognized by the U.S. Department of Education as the national accreditor of U.S. law schools, started requiring schools to teach ethics, which had been an elective course.

The conduct of former White House counsel Don McGahn, who is prominently mentioned in the Mueller report, was cited by the panelists as an example of lawyer ethical behavior. As an example of improper conduct, they pointed to President Trump’s personal attorney Michael Cohen, a self-described “fixer,” who is now serving a three-year prison sentence for crimes that included arranging payments during the 2016 election to silence women who claimed affairs with then private citizen Donald Trump.

The lessons of both, observed Clark, is that under ABA Model Rules of Professional Conduct, adopted widely among the states, lawyers cannot “assist a client in a crime.”

“That is clear if the client is an individual or an entity like the Office of the President,” she added.

The panel engaged in a vigorous discussion of the lawyer model rules, revamped in 1983 after Watergate, as they relate to confidentiality, conflicts of interest, fairness to opposing parties and counsel and publicity during the investigation or litigation of a matter.

There was a consensus that although Watergate initiated the current era of formal and informal protocols governing government investigations, court decisions during the Whitewater investigation during the Clinton administration were critical in defining the legal relationship between a president and the White House counsel. In 1997, for instance, the U.S. Supreme Court declined to hear a Clinton administration appeal of a lower court ruling forcing White House lawyers to give Whitewater independent counsel Kenneth W. Starr notes they took in discussions with then-First Lady Hillary Rodham Clinton.

“The White House counsel represents the presidency not the president,” Wine-Banks said.

Green, who served as moderator, raised the question of whether false statements by lawyers to the press or in public and not through legal channels or proceedings are violations of the model rules.

Wine-Banks said she was unsure but “as a citizen I expect truthfulness.” She also urged lawyers in high-profile cases to avoid making definitive statements that something is true or false. Rather, she explained, the lawyers should couch any messaging by saying, “my client tells me.”