If you are interested in ethics, white collar crime, and the way they overlap, Christmas has come early this year. Your gift is the array of ethical issues inherent in the latest twist in the investigation into the Trump campaign’s connections to Russia’s interference with our Presidential election; it provides a fascinating hypo for ethics professors.
The twist at issue is the disclosure by John Dowd, the President’s lawyer, that Dowd himself drafted a tweet from the President in which the President admitted that he forced Flynn to resign because he knew that Flynn had lied to the F.B.I. The tweet went further to say that Flynn’s lies were unnecessary “because his actions during the transition were lawful.” Dowd’s disclosure of his authorship may have been compelled by the realization that the President’s admission of his knowledge of these lies, coupled with former F.B.I. Director James Comey’s sworn testimony that Trump asked him not to pursue his investigation of Flynn, creates an inference that the President knew he was obstructing an investigation into a crime. In other words, Dowd’s disclosure that it was he who had drafted the tweet, may be an attempt to cover-up the cover-up.
First question: how successful will this attempt to mitigate the harmful effects of the tweet be? In a hypothetical criminal trial of the President for obstruction of justice, the tweet is admissible as an admission by a party opponent, an exception to the hearsay rule. See PA.R.E. § 803 (25). If the tweet is offered against an opposing party and “(A) was made by the party in an individual or representative capacity; (B) is one the party manifested that it adopted or believed to be true; (C) was made by a person whom the party authorized to make a statement on the subject; (D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or (E) was made by the party’s coconspirator during and in furtherance of the conspiracy” then it is admissible in the government’s case in chief. So legally, who wrote the tweet makes little difference since it came from the President’s “official” account and was made by an authorized agent.
Turning to the ethics questions, what will Dowd do if Special Counsel Mueller seeks to interview him on the issue of when the President knew that Flynn had lied to the F.B.I. and which lies did he know about? The first ethical rule implicated by that question is Rule of Professional Conduct 1.6, the rule of client confidentiality. When Dowd disclosed that he had drafted Trump’s tweet, was he revealing a client confidence that Trump knew that Flynn lied to the F.B.I.? Of course, for the privilege to attach, the communication must be made “for the purpose of securing either an opinion of law, legal services or assistance in a legal matter, and not for the purpose of committing a crime or tort.” Bousamra v. Excela Health, 167 A.3d 728, (Pa. Sup. Ct. 2017). In drafting the tweet, was Dowd acting as a lawyer, or as a publicist? See Matter of Feldberg, 862 F.2d 622, 636 (7th. Cir. 1988) (Privilege does not attach to marketing advice given by a lawyer.) Is drafting a public statement legal advice? If Dowd was giving public relations advice, the conversations leading to the drafting of the tweet are not privileged and the concept of waiver does not apply; the conversations are discoverable as not subject to the privilege in the first place.
However, if the tweets are part of a legal strategy to attempt to sway public opinion, the conversations leading to the tweet could be communications made for the purpose of obtaining legal advice. In that case, Dowd’s disclosure of the fact that Trump knew Flynn had lied to the F.B.I. might constitute a waiver of the privilege surrounding the communications leading to Dowd’s discovery of that knowledge. See In re Chevron Corp., 633 F.3d 153, 165 (3d Cir. 2011) (Disclosure to a third party waives the privilege.). While the privilege may be waived only to that “subject matter” – here subject matter may be defined broadly. Of course, if Trump asserts some type of advice of counsel defense that will also waive the privilege. See In re Grand Jury Subpoena, 341 F.3d 331(4th Cir. 2003) (Defendant who testified that he relied on attorney’s advice when he provided false information to government waived privilege.).
A more nefarious and cynical interpretation of events could be that, in asserting that Flynn lied needlessly about contacts with Russians because these contacts were legal, Dowd and Trump were using the tweets to influence not just public opinion, but possible witnesses or even the grand jurors themselves; if proven, these facts could establish the corrupt intent necessary to support an obstruction of justice charge. In that case, the discussions between the President and his lawyer could be subject to the crime-fraud exception to the attorney-client privilege. See United States v. Zolin, 491 U.S. 554, 563 (1989) (“It is the purpose of the crime-fraud exception … to assure that the seal of secrecy between lawyer and client does not extend to communications made for the purpose of getting advice for the commission of a fraud or crime.”) Before the crime-fraud exception can be invoked successfully, the party contending that it applies must make a prima facie showing that (1) the client was committing or intending to commit a fraud or crime, and (2) the attorney-client communications were in furtherance of that alleged crime or fraud.
Last but not least, has Dowd’s disclosure that he drafted this specific tweet made him a witness to the substance of the tweet and if so, does his position as a witness disqualify him from continuing to represent the President? Rule of Professional Conduct 3.7 prohibits a lawyer from acting as an advocate if the lawyer is likely to be a necessary witness unless the following conditions apply: the testimony relates to an uncontested issue; the testimony relates to the nature and value of legal services rendered in the case; or disqualification of the lawyer would work substantial hardship on the client.
The Comment to Rule 3.7 makes clear that the central issue in determining if an advocate can also be a witness is whether the dual role may give rise to a conflict of interest that will violate Rules of Professional Conduct 1.7 or 1.9, the rules governing conflicts with current (1.7) and former clients (1.9). Determining whether a conflict precludes representation is a question for the lawyer to decide, but one should not proceed without a client’s informed and written consent. However, in the criminal context, where the attorney is forced to testify against a client, the conflict will almost certainly be deemed unwaivable and a motion to disqualify counsel will be made by the prosecution.
While the latest twist in the Russia investigation is an early Christmas gift, one thing we have learned is that, while President Trump is in office, these “gifts” will keep on coming. In the New Year, I predict we will see more unexpected and unprecedented ethical and legal issues as the Mueller investigation proceeds. (In fact, as I write this, the President’s lawyers appear to be asserting that as the “head law enforcement officer” the President is incapable of obstructing justice; a novel and a wrong assertion. Just because one has power to act, does not mean that the unlawful assertion of that power is legal.)
I also make this prediction for the coming year: as lawyers, we will continue to fight for the rights of the disenfranchised, for truth, for a free press, for freedom from discrimination, and for the rule of law.
Until next year, Happy Holidays and Happy New Year to all of you: my friends and colleagues in the legal community.
Reprinted with permission from the December 6, 2017 issue of The Legal Intelligencer. © 2017 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
You can also find this article, as published, here.