In the 2020 US presidential election and its aftermath, misleading or untrue statements by lawyers—in court or in public statements—sparked ethics complaints, litigation, and public concern that this behavior could subvert the democratic process. On March 31, the NYU Law Forum, sponsored by Latham & Watkins, convened a panel of legal experts to discuss disturbing trends in some attorneys’ increased willingness to push legal and ethical boundaries.
The discussion, moderated by Dean Trevor Morrison, included Professor of Practice and Distinguished Scholar in Residence Bob Bauer, former White House counsel; Distinguished Scholar in Residence and Adjunct Professor Preet Bharara, former US attorney for the Southern District of New York; Elihu Root Professor of Law Stephen Gillers ’68; and Sherrilyn Ifill ’87, president and director-counsel of the NAACP Legal Defense and Educational Fund.
Selected remarks from the event:
Stephen Gillers: “Our professional conduct rules, present in every American jurisdiction, based on an ABA document, have provisions for lawyers who litigate, for lawyers for corporations, for prosecutors—rather narrow ones—but no provision aimed specifically at the complex relationship of the government lawyer to his or her client. No provision saying who the client is, which in a government context can be a challenge. We lack precision on the question of the government lawyer’s duty of confidentiality and exceptions to it, whether permissive or mandatory. We need a rule on the attorney-client privilege for the government lawyer, as we’ve learned in the last four years, and including a more robust whistleblowing provision—again, mandatory or permissive—with protection against retribution.” (video 09:02)
Sherrilyn Ifill: “We were all trained to believe that lawyers had certain responsibilities. When we describe ourselves as an officer of the court, it means there are certain presentations we can make and certain presentations we can’t make. There is a way we conduct ourselves, there’s a way we do not conduct ourselves…. That’s what this profession is supposed to be about. So [answering the question of who we are as a profession] begins, first of all, with the conversation about ‘What’s that whole cluster of things?’ and what happens when lawyers operating at the highest level of the profession, whether they are government lawyers or whether they are law firm partners,…present themselves in a way that is contrary to the way in which we have been taught to believe lawyers should present themselves.” (video 17:35)
Preet Bharara: “There is a politeness in legal civil society, and we don’t call people out because they are or have been or will be law partners with our friends, and they will represent clients, and there’s a kind of softness in talking about this…. On the first day of the first impeachment trial of Donald Trump, among other things, the sitting White House counsel [Pat Cipollone]—who is a public servant, who has some capacity for representing the position of the president but whose salary is paid for by us—said brazenly…that in the proceedings leading up to the impeachment, Adam Schiff had not allowed his Republican colleagues to participate in those proceedings in the [Sensitive Compartmented Information Facility]. That’s a lie. That was just completely untrue…. Pat Cipollone spoke multiple times after that in the impeachment proceeding, never corrected it…. In the well of the Senate, in an impeachment trial of the president of the United States, for a lie to go uncorrected after it’s been called out is part of the problem that we have.” (video 25:43)
Bob Bauer: “One of the problems we’re dealing with is that lawyers are highly incentivized to do what they do in the public space…. There’s a lot of lawyering on Twitter. And to begin with it’s 280-character lawyering, and to the extent that it has any impact, it’s meant to be particularly colorful. So if it’s going to be that compressed and that colorful and its primary goal is to be heard, to elevate that voice above others in the public space, then the makings of trouble is obvious. Because whatever may be the truth, if there’s any nuance to it at all, capturing that in 280 [characters] and still keeping your audience with you in a Twitterized world is going to be very difficult.” (video 42:27)
Watch the full discussion on video:
Posted May 5, 2021