YOURABA | ETHICS IN VIEW

A wake-up call to accountability

By Teresa J. Schmid, JD, MBA, LP. D, CAE, ABA Center for Professional Responsibility

Feb. 1, 2021

The following contains purely informational, educational, or technical material. The views expressed here represent the opinions of the author and have not been approved by the ABA House of Delegates or the Board of Governors and, accordingly, should not be construed as representing the position of the association or any of its entities.

Lawyers are leaders. Yet their first awareness of leadership may come as a shock. It could be the moment a lawyer realizes that a client sought their advice and acted on it, or the first time a judge accepts the lawyer’s argument and rules in favor of it. When people subrogate their own judgment to that of the lawyer, they are following. The lawyer, as leader, assumes a heavy responsibility for the outcome and absorbs much of the followers’ anxiety about it. Leadership is easy to recognize; it is difficult to practice because it is accountable.

In contrast, power is easy to practice, because it does not feel accountable. Lawyers may slip into an illusion of having personal power when they advise powerful people. Powerful people can exercise power so as to appear to be above the law, or arbiters of the law itself. Lawyers who share their client’s illusion of having such power devolve from lawyer-leaders into lawyer-fixers. For a fixer, ABA Model Rules of Professional Conduct such as Model Rule 1.6 (Confidentiality of Information) and Model Rule 2.1 (Advisor) neutralizes their compliance with other rules such as Model Rule 8.4 (Misconduct), which prohibits breaking the law or failing to comply with the Rules of Professional Conduct.

As the new presidential administration assesses the effects of the former one, it is becoming increasingly clear that lawyer-fixers were a major factor in the decisions made over the past four years under the previous administration. The constant turnover of senior officials, including lawyers, during that time is instructive. A 2021 Brookings Institution article sets the turnover rate at 95% in the last administration as through Jan. 14, not counting the flurry of departures in the final days before the inauguration. Model Rule 1.13 (Organization as Client) lists the responsibilities of a lawyer employed by an organization when the client or one of its officers or employees are engaged in illegal conduct detrimental to the organization, and the organization takes no action to stop it. Many lawyers are fired for opposing the client’s illegal practices. If the lawyer cannot continue representation without breaking the law or violating a Rule of Professional Conduct, resignation may be the only remaining ethical option. Nevertheless, some choose to stay, possibly believing they can still change the organization’s tolerance for criminal conduct. But when the client’s illegal activity continues and a lawyer remains, the lawyer may become an enabler or fixer. The lawyer can also share in criminal liability as a co-conspirator.

We have precedent for this dynamic. The experience of lawyer John Dean in Watergate, as described in his 1976 book, “Blind Ambition,” is instructive. A criminal act in Washington, D.C. — the Watergate break-in — triggered an FBI investigation that developed evidence of a cover-up by government leaders and led to an inquiry by the Senate Judiciary Committee. Dean and several other lawyers, including former President Richard Nixon, were identified as criminally involved, and most faced criminal prosecution, imprisonment and disbarment. President Nixon escaped criminal sanctions by resigning the presidency and was pardoned by his successor, President Gerald Ford, but Nixon did not escape accountability: He was disbarred in New York in 1976. More recently, Michael Cohen’s 2020 book, “Disloyal,” provides a primer to how a presidential administration focused on power used lawyers to maintain it. Cohen was a lawyer and self-described “fixer” when he was invited to be personal counsel to now former President Donald Trump. He describes in detail his addiction to power and the actions he took to maintain it for his client and himself. As Cohen’s favor with his client faded, and with it his personal power, he was separated from the protection of the presidency. Ultimately, he entered a plea agreement acknowledging criminal liability and was imprisoned.   

Regulators are already feeling demands that the agencies move against lawyers whose public actions suggest unethical behavior. While confidentiality of initial disciplinary investigations is still the norm, there are many instances of complainants releasing the full text of their complaints on the internet. For example, a press release issued Dec. 7, 2020, by Lawyers Defending American Democracy reported that “Over 1,500 Attorneys Press Bar Authorities to Condemn & Investigate Trump’s Campaign Lawyers” and a signed Open Letter to that effect. And these may proliferate.

Another example of this occurred on Jan. 11, when 7,300 lawyers and law students posted online a petition calling for the disbarment of two lawyer/senators. What the petition reveals is a lack of attention to the question of what acts by the senators constituted violation of any Rules of Professional Conduct and whether those violations constitute grounds for disbarment in any of three specific jurisdictions: Missouri, Texas and the District of Columbia. While the petition mentions certain Rules of Professional Conduct that could be at issue, it also notes that versions of the same rules differ among those jurisdictions. This nonspecific petition does not speak to a lack of thoughtfulness by the drafters but to an implicit appreciation that no nationwide mechanism exists to investigate, litigate and impose discipline.

The Federal Bureau of Investigation created a “most wanted” landing page seeking the public's assistance in identifying individuals who made unlawful entry into the United States Capitol Building on Jan. 6. On Jan. 13, an FBI representative publicly reported that the agency had already received more than 100,000 pieces of data identifying individuals seen at the Capitol. To the extent that evidence implicates lawyers in the planning or execution of violent acts, regulators will be increasingly drawn into controversies, the magnitude of which will outpace the regulator’s resources. The FBI’s investigations will focus on criminal behavior and who committed it. It is likely that many lawyers will become subjects of interest, and that their licensing jurisdictions will be pressured to begin investigations of their own.

As lawyers are convicted in criminal courts, their licensing jurisdictions may immediately initiate disciplinary proceedings under Model Rule 8.4. The criminal justice system is better equipped than disciplinary systems to prosecute a large number of defendants, but it cannot protect the public from a convicted lawyer who continues to practice law. If disciplinary proceedings do not follow, the convicted lawyer may continue to practice, even within the confines of prison. It remains to be seen whether regulators have the capacity to process the volume of ethical complaints that are likely to follow.

This is a wake-up call and a reckoning for the legal profession. Is the turnover volume of lawyers a validation that the majority of the resigned and fired lawyers departed because they would not do what their client demanded? Or were there too many fixers, who lost a sense of accountability and exposed themselves to both criminal and ethical liability? These times provide a litmus test for the profession.

If the profession is awake to the implications, it will be ready for the road ahead.

Teresa J. Schmid is the director of the American Bar Association’s Center for Professional Responsibility. She is a past executive director for the Oregon State Bar and executive director for the State Bar of Arizona. She is also a past chair of the Los Angeles County Bar Association’s Professional Responsibility and Ethics Committee and a past member of the State Bar of California’s Standing Committee on Professional Responsibility and Conduct.   

The Center for Professional Responsibility provides national leadership in developing and interpreting standards and scholarly resources in legal and judicial ethics, professional regulation, professionalism, and client protection.

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