7 minute read
Schooled in Ethics
SCHOOLED IN ETHICS By: Judy M. Cornett
UT College of Law
HOW FAR SHOULD YOU TRUST YOUR CLIENT?
Local lawyers have been discussing one of former President Donald Trump’s lawyers, who recently signed a “certification” relating to the FBI’s search for classified documents at Mar-a-Lago. According to news reports, “The lawyer signed a statement in June that all documents marked as classified and held in boxes in storage at Mar-a-Lago had been given back. The search at the former president’s home on Monday turned up more.”1 Did this lawyer commit an ethical violation?
In response to Trump’s motion to appoint a special master to review the seized documents, the Justice Department reviewed the history of the efforts to retrieve Presidential materials from Trump.2 The Justice Department obtained a grand jury subpoena, “directed to the custodian of records for the Office of Donald J. Trump,” requesting materials with “classification markings” in his “custody or control.”3 The subpoena could be satisfied “by providing from the custodian a ‘sworn certification that the documents represent all responsive records.’”4
Trump’s attorney and the Justice Department agreed that the subpoenaed materials would be turned over at Mar-a-Lago on June 3, 2022. After the documents were turned over, “[t]he individual present as the custodian of records produced and provided a signed certification letter.”5 That letter reads as follows in its entirety:
CERTIFICATION I hereby certify as follows: 1. I have been designated to serve as Custodian of Records for The Office of Donald J. Trump, for purposes of the testimony and documents subject to subpoena #GJ20222042790054. 2. I understand that this certification is made to comply with the subpoena, in lieu of a personal appearance and testimony. 3. Based upon the information that has been provided to me, I am authorized to certify, on behalf of the Office of Donald J. Trump, the following: a. A diligent search was conducted of the boxes that were moved from the White House to Florida; b. This search was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena; c. Any and all responsive documents accompany this certification; and d. No copy, written notation, or reproduction of any kind was retained as to any responsive document. I swear or affirm that the above statements are true and correct to the best of my knowledge. Dated: June 3, 2022
_______Blacked out______
Blacked out News reports assert that the Certification was signed by an attorney.6 However, the statement, “Any and all responsive documents accompany this certification” turned out to be false. Upon execution of the search warrant, the FBI found many additional documents responsive to the subpoena.7
This attorney was probably not licensed in Tennessee,8 but let’s examine how the attorney’s conduct would be treated under Tennessee’s Rules of Professional Conduct.9 Clearly, if the attorney knew that the statements in the Certification were false (i.e., no search had been made, there were additional documents that were not turned over), the attorney would have violated Tenn. R. Prof. Cond. 8.4(c), which proscribes “conduct involving dishonesty, fraud, deceit, or misrepresentation.” Although knowledge requires “actual awareness,” “knowledge can be inferred from the circumstances.”10 If there were circumstances justifying issuance of a search warrant, there may well have been circumstances from which the attorney’s knowledge can be inferred. This is true even if the attorney is merely serving as “custodian of records” as opposed to having an attorney-client relationship with Trump, since Rule 8.4 reaches even private conduct.
The more difficult question arises if the attorney did not know that the statements were false when they signed the Certification. The Certification was made “[b]ased upon the information that has been provided to [them],” not on personal knowledge. Similarly, the use of passive voice – “the search was conducted” – suggests that the attorney is acting on information provided by others. Thus, the attorney attempts to negate any personal responsibility for the statements in the Certification. But is that negation effective?
Initially, the duty of competence under Rule 1.1 requires “thoroughness and preparation,” which in turn “includes inquiry into and analysis of the factual and legal elements of the problem.”11 An inquiry might well have turned up circumstances indicating that the statements in the Certification were false. Once the attorney learned that at least one statement in the Certification was false, what were the attorney’s ethical duties? Assuming that there was an attorney-client relationship and that the attorney received the false information from their client. Comment [10] to Tenn. R. Prof. Conduct 1.2(d) provides: A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. See RPC 1.16(a). In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like. See RPC 4.1. Rule 1.16(a) requires withdrawal when “the representation will result in a violation of the Rules of Professional Conduct or other law,” while Rule 4.1 provides, “In the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person.” And if the client refuses to rectify the crime or fraud, Rule 4.1(c) requires withdrawal and disaffirmance under some circumstances. “If the client refuses or is unable to rectify the crime or fraud, the lawyer shall:
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(1) if currently representing the client in the matter, withdraw from the representation and give notice of the withdrawal to any person whom the lawyer knows is aware of the lawyer’s representation of the client in the matter and whose financial or property interests are likely to be injured by the client’s criminal or fraudulent conduct; and
(2) give notice to any such person of the lawyer’s disaffirmance of any written statements, opinions, or other material prepared by the lawyer on behalf of the client and that the lawyer reasonably believes may be used by the client in furtherance of the crime or fraud.
Rule 4.1(c) applies only if the client’s crime or fraud has resulted in damage to the financial or property interests of another person. Arguably, the delay in obtaining additional classified documents would not be viewed as financial or property damage to the United States. On the other hand, since the documents are the property of the U.S. and have been detained, the U.S. may have suffered sufficient injury to trigger the duty to disaffirm.
The lesson here seems clear: Listen to your client but honor your duty of competence by making an inquiry into the circumstances, and if the inference of falsity can be drawn from those circumstances, do not certify your client’s statements as true. If you have already done so, and both the representation and the matter are ongoing, withdraw and read Rule 4.1 to determine whether you must disaffirm.
1 Maggie Haberman and Glenn Thrush, Trump Lawyer Told Justice Dept. That Classified Material Had Been Returned, N.Y. Times (Aug. 13, 2022), available at https://www.nytimes.com/2022/08/13/us/politics/trump-classified-material-fbi. html. 2 United States’ Response to Motion for Judicial Oversight and Additional Relief,
Trump v. United States, no. 22-CV-81294-CANNON (S.D. Fla. Aug. 30, 2022), available at https://www.nytimes.com/interactive/2022/08/31/us/doj-trumpspecial-master.html. This site has a link to a downloadable PDF of the Response. See generally Congressional Research Service, The Mar-a-Lago Search Warrant: A Legal Introduction (Aug. 29, 2022), available at https://crsreports.congress.gov/ product/pdf/LSB/LSB10810. 3 United States’ Response, supra note 2, at 8. 4 Id. 5 Id. at 9. 6 Some news reports identify the attorney as Christina Bobb. See, e.g., Guilia Carbonaro, Who Is Christina Bobb? Trump Lawyer Faces Pressure Over Classified Docs, Newsweek (Aug. 31, 2022), available at https://www.newsweek.com/whochristina-bobb-trump-lawyer-pressure-classified-docs-1738360. 7 Jon Wolfe, Donald Trump’s Mar-a-Lago Home Searched by FBI: What to Know (Aug. 30, 2022), available at https://www.wsj.com/articles/donald-trump-search-mar-alago-fbi-11660267417. 8 Christina Bobb is licensed in California. https://apps.calbar.ca.gov/attorney/ Licensee/Detail/259430. 9 The statements were not subject to Tenn. R. Civ. P. 11, since they were not “submitted” to a court. 10 Tenn. R. Prof. Conduct 1.0(f). 11 Tenn. R. Prof. Conduct 1.1 comment [5].
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