The risky business of client misconduct on lawyers

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

March 8, 2021

The following contains purely informational, educational, or technical material. The views expressed herein 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.

For five days starting on Feb. 9, the United States Senate held a trial on an Article of Impeachment drawn by the House of Representatives against the 45th president, Donald J. Trump. The Article was based on events that led to a violent mob storming the U.S. Capitol on Jan. 6, which resulted in five dead and more than 140 people injured. There was also extensive damage to the Capitol building. House Impeachment Managers presented the prosecution, and the defense were the former president’s private counsel.

At issue was whether Trump, while in office, committed a “high crime and misdemeanor” warranting impeachment under Article II, Section 4 of the United States Constitution, “Impeachment and Removal from Office.” For the former president’s lawyers, there was a second issue: If Trump committed a high crime and misdemeanor, did any of his lawyers so enable those actions that they may have violated Model Rule of Professional Conduct 8.4, “Misconduct”? The rule prohibits, inter alia, committing a criminal act, engaging in fraud or deceit, or stating or implying the ability to improperly influence a government agency or official. Ultimately, the impeachment verdict was “not guilty,” rendering those issues moot for both Trump and his lawyers — but temporarily.

After the acquittal was certified and recorded on Feb. 13, Senate Majority Leader Mitch McConnell, who had voted “not guilty” for impeachment, delivered a statement that not only reinforced the allegations in the Article of Impeachment, but also advocated criminal prosecution and civil suits against the former president for that and other alleged misconduct. Several of these are reportedly already in progress, and if Trump is found criminally guilty or civilly liable for such misconduct, his lawyers may have serious ethical violations arising from the same sets of facts.

To the extent that Trump’s lawyers rely on lawyer-client confidentiality to protect client information, the reliance may be misplaced. Confidentiality rules can differ widely among jurisdictions, but there is one feature they have in common: exceptions. For example, Model Rule 1.6, “Confidentiality of Information,” permits revealing client information when it could prevent death or serious bodily harm; substantial financial harm to another; and the client committing a crime or fraud in furtherance of which the client has used the lawyer’s services. The primary purpose of ethics rules is to protect the public. Any client misconduct can lead to lawyer misconduct when the public is placed at risk and the lawyer enables it.

There are other rules that expressly govern the lawyer’s proper role in serving a client whose culpability may be at issue. For example, all the liabilities based on Rule 8.4 as discussed earlier are resurrected for all purposes, not just impeachment. They include, and are not limited to, Rule 1.1, “Competence”; Rule 1.4, “Communications”; and Rule 1.13, “Organization as Client.” Since impeachment proceedings are limited to examining an individual’s conduct in their personal capacity as a public official, the trial did not address the former president’s conduct as it related to his business organization and personal transactions. However, in the next wave of civil and criminal proceedings against him, all such activity may be relevant. Rule 1.13 directly addresses what a lawyer is required to do when an organization or its officers engage in illegal activity.

On Jan. 15, Speaker of the House Nancy Pelosi called for appointment of a commission like that which investigated 9/11 to study the January invasion of the Capitol. In light of the potential for lawyers to have advised or enabled the events leading to the incident, it may be appropriate for a separate commission to include examination of lawyer involvement.

In making their case, one of the House Managers used the words of Voltaire to capture the implications of Jan. 6 for both the public and for lawyers, whose oaths of office require protection of the U.S. Constitution: “Those who can make you believe absurdities can make you commit atrocities.”

Teresa J. Schmid is the director of the American Bar Association 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. She is licensed and active in Illinois, California and Oregon.

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.