Trump’s Personal Lawyer, Advice to Unrepresented Persons, and Professional Responsibility

Posted by: Ray Brescia | June 13, 2017

Trump’s Personal Lawyer, Advice to Unrepresented Persons, and Professional Responsibility

According to a published report in the New York Times, President Trump’s personal lawyer, Mark Kasowitz, has supposedly counseled other individuals within the President’s inner circle that they shouldn’t “lawyer up.”

Rule 4.3 of New York’s Code of Professional Responsibility (Trump’s lawyer is admitted to practice in New York State and thus this code covers his conduct) provides as follows:

COMMUNICATING WITH UNREPRESENTED PERSONS
In communicating on behalf of a client with a person who is not represented by
counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer
knows or reasonably should know that the unrepresented person misunderstands the
lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the
misunderstanding. The lawyer shall not give legal advice to an unrepresented person other
than the advice to secure counsel if the lawyer knows or reasonably should know that the
interests of such person are or have a reasonable possibility of being in conflict with the
interests of the client.

In DC, the corollary to this provision, which also applies (unless, of course, Kasowitz is not admitted to practice in DC, which would raise other problems), provides as follows and is essentially identical to New York’s provision (both of which are adopted from the American Bar Association’s Model Rules of Professional Conduct):

(a) In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not:
(1) Give advice to the unrepresented person other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of the lawyer’s client; or
(2) State or imply to unrepresented persons whose interests are not in conflict with the interests of the lawyer’s client that the lawyer is disinterested.
(b) When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

What is critical in the analysis here is whether there is a reasonable possibility that those in Trump’s inner circle who received any such advice from Kasowitz might ultimately have interests in conflict with those of the President. The lawyer who deals with unrepresented persons, if there is a reasonable possibility that the interests of his or her client might be in conflict with such persons, should give no advice to them other than they might seek separate counsel. In a situation such as this, where it is easy to infer that there is a reasonable possibility that one of these aides has interests in conflict with those of the President, the decision to counsel them that they should not seek separate counsel, assuming that Kasowitz did, indeed, make such a recommendation, would seem to run directly contrary to his professional duties.

Posted in Uncategorized

the Future of Change