The Mafia-like “deals” President Donald J. Trump unlawfully extorted from some of the nation’s largest law firms may have boosted his ratings on television, but there is little else to commend them. They are potentially both unethical and even criminal, and could in theory cost those firms their ability to practice law at all.
To redress a variety of his political grievances, President Trump issued executive orders that prohibited certain law firms he targeted from entering any federal building or having any contact with any federal official. As the federal courts have unanimously said, the orders are patently unconstitutional. He targeted law firms that had represented his political opponents in some way. The law firms committed no crime. Even if they had, no statute authorizes punishment of that type.
And the government cannot punish anyone for the exercise of first amendment rights. If it protects anything, the first amendment protects the right to speak out against President Trump, to represent others who speak out against President Trump, and to petition the government for redress for their grievances.
It is understandable why a law firm faced with such a threat might wish to make a deal. Law firms who cannot represent clients who have problems with the government will lose business to firms who can. Even if a firm challenges the order, it will take time for the courts to reach a final decision . The clients may be gone by the time that happens.
And if the deal is an agreement to provide free legal services to whatever cause the president chooses, the firm may believe the president will grant the firm other favors in the future. The prospect of those favors may attract even more clients. Or not. One New York firm is said to have promised $40 million, another $100 million.
One less-mentioned problem with all of this is that what the president and the deal-making firms have done has the potential to run afoul of laws prohibiting extortion, bribery, and conflicts of interest. The lawyers who do deals like this may ultimately need to hire lawyers themselves to defend them in criminal court and in disbarment proceedings.
All of this is explained in some detail in a brief a group of legal ethics professors filed in the case Perkins Coie, a Seattle-based law firm, has brought against President Trump in the District of Columbia federal court. That court has prohibited enforcement of the Trump order.
To begin with, the federal anti-bribery statute makes it a crime to “corruptly” give “anything of value to any public official …with intent to influence any official act.” The term “thing of value” is not limited to money, and in federal criminal law has been held to include charitable donations. The law firms are giving the “free” services to the president so that he will set aside his executive orders against the firms, which are official acts. That certainly sounds like bribery, but it may depend on exactly what the firms are called on to do.
Also, volunteer lawyering may violate the “Anti-Deficiency Act,” which makes it a crime for a government officer to knowingly and willfully accept “voluntary services.” The law forestalls “moral” claims for reimbursement and keeps executive branch operations within the boundaries set by Congressional appropriations.
But even if that were not the case, the deals could violate the ethical rules that are designed to ensure a lawyer’s loyalty to clients. A lawyer cannot represent a private client if, as the American Bar Association rules put it,, there is a “significant risk” that the representation will be “materially limited” by responsibilities to President Trump or by the personal interest of the lawyer. As the scriptures put it, no one can serve two masters.
By apparently acknowledging the validity of the orders, the firms compromise themselves. They may be reluctant to use an argument for a private client with which President Trump might disagree. His potential opposition is important because the “deals” do not prohibit President Trump from reinstating the executive orders anytime he chooses.
It is true that an informed client can waive a conflict of interest, but why would a client do so except for a belief that the deal held out at least the hope of favorable government treatment? In other words, the client at least hoped that the firm has successfully engaged in what may in the circumstances sound like bribery.
Also, a client can only waive a conflict after being informed of the material risks and alternatives, and the firm with the conflict is not in a position to provide that advice. Another lawyer could be hired for that purpose, but there would be no way for that counsel to accurately forecast what actions might trigger further presidential reprisals.
President Trump can rest easy in the belief that what he calls “his” Justice Department will not prosecute anyone for these deals, and in the belief that, even if prosecution were brought, he could have immunity.
But the deals as they evolve still could be an impeachable “high crime” that would justify his removal from office. In addition, the lawyers involved may run the risk of losing their licenses to practice law. The state bar associations and state courts, not the Department of Justice, enforce lawyer ethics rules. Lawyers not involved in the deals have an ethical duty to report misconduct to their state bar associations. No one should be surprised if that happens.
Luther Munford is a Northsider.
