Traps for Lawyers

Dear Readers, Representing a client is tricky. There are so many competing values an attorney has, often in conflict with each other. This makes it difficult to thread the needle of competently representing a client while maintaining professionalism.

Clients make the mistake of seeking out legal advice mirroring their own desires. One attorney will honestly say there is no claim, but a client will hire the attorney who says what some wants to hear. A client should understand that legal advice includes being told the distasteful.

An attorney has the duty to zealously advocated for a client, bounded by the rules of professionalism and ethics. We are “officers of the court” and cannot knowingly repeat a lie. This should make us great skeptics of what a client tells us. We cannot accept on face value what we are told, we have a duty to investigate and examine the truth for ourselves. Above all, in the pursuit of zealous representation, we may not encourage the truth, the core of the legal system.

There are shades of truth in which we can maneuver. It may look like a client raped a woman, but we cannot know with certainty. Thus, in the context of criminal representation, it is ethical to advocate that the state has not proven the rape occurred. If there is some doubt, this leaves the door slightly ajar to argue there is reasonable doubt, without advocating that the client has done nothing wrong.

This is nuance and what gives attorneys a bad wrap. We are indeed mouthpieces for our clients; although, there is a limit. It is just that the line demarking what is ethical from shady is often very hazy.

If a client states something as fact to an attorney, the duty is to “call” the client on the misstatement of fact. This has to be gently if the intended effect is realized – an attorney who presses the issue too hard will lose the ability to properly influence a client. Hence, delicacy must be undertaken.

The danger for an attorney is when they are enmeshed with a lie – wittingly or unwittingly. A client who even suggests an attorney lie is dangerous. This is where an attorney must consider his or her self-interest and walk away. And, if the client is emboldened enough to think this is possible, the attorney is not well-serving the role of an advocate. We are supposed to be able to deliver the “bad news.”

Whatever you think about Donald Trump, he is an example of a horrible client, wanting attorneys to do his bidding. Mr. Trump has said as much, castigating and demeaning successive Attorney Generals, who are public lawyers for us, and not being partisan enough.

Mr. Trump also draws a line connecting Department of Justice actions – indicting him and not being sufficiently (in his eyes) of charging Hunter Biden – and Merrick Garland (a former Federal Judge) being appointed by President Biden. This is what he would do, not what any President (maybe with the exception of Richard Nixon) would do.

This attitude, attorneys are simpatico with a client, leaves Mr. Trump naked to legal problems. Instead of listening that what he wants to do is illegal, Mr. Trump does what he wants. Instead of recognizing the peril of the various criminal and civil cases against him and the Trump Organization, Mr. Trump finds attorneys who echo his conviction that everything is a “witch hunt” and partisan attacks.

For attorneys, this has proven a deal with the devil. Michael Cohen went to Federal Prison from decades of being Trump’s “fixer.” Sydney Powell, convicted of 6 misdemeanors, likely costing her all of her bar licenses. Kenneth Cheeseboro and Jenna Ellis have the added insult of being convicted felons – albeit on first offender probation. Each of them did not exercise the proper judgment their profession requires and each of them will be deprived of their profession.

This did not serve them well or their client. Their obligation as an officer of the court is to sever ties with a client who disregarded their learned advice.

Those representing Mr. Trump are victims of a “Faustian” bargain in doing so. They will lose their reputations trying to defend the indefensible, especially as they seem to be preaching to a choir of one – the client. This is sad to watch and an example of an attorney must have lines that cannot be crossed in the advocacy offered. No client is worth it.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami. Owner of Rockefeller Law Center, Jim has been in private practice since 2000. E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.

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