Disaster is Better Than Catastrophe

It sort of looks like Trump attorney Michael Cohen has chosen disbarment over the threat of prison.

I call him “Trump attorney” and not “former Trump attorney” because he still has a duty of loyalty to his client. The duty of loyalty generally survives the client/attorney relationship, and it is not a trifle or merely a custom. It’s codified in ethical rules for attorneys.

Michael Cohen recorded conversations with Donald Trump, and he didn’t get consent. In Florida, this would be a crime. In New York, it appears to be legal. No matter where you are, it’s unethical.

A lawyer has a duty to put his client’s interests first. When the lawyer and the client have conflicting interests, the client wins. There is no conceivable reason for taping a conversation surreptitiously, except to put the other party at a disadvantage relative to yourself. Simply by making the recording, Cohen betrayed his client.

I wonder why almost no one is talking about this. Well…I don’t wonder. I know. Leftist journalists are so happy the recordings exist, they don’t care how they were created. We have seen this before. Someone committed a crime by stealing part of a Trump tax return and giving it to the press, and journalists could not have cared less. Democrats taped Newt Gingrich illegally and released the recording, and journalists were thrilled.

Mind you, these are the people who would call for impreachment and prison time if Donald Trump double-parked.

Cohen his turning on Trump, and he wants immunity from prosecution. I haven’t read that he wants immunity, but it’s obvious. Problem for Cohen: there is no such thing as immunity from bar discipline. A prosecutor or trial judge can’t order a bar association to ignore ethical violations. They don’t have jurisdiction. Even if Cohen is never charged with a crime, his proud, continuing violations of the rules of ethics are going to bring consequences.

Why does he fear prosecution? Dinesh D’Souza. Mr. D’Souza was convicted of making illegal campaign contributions. If Cohen paid an aging stripper off in order to help Trump get elected, he may have violated campaign finance laws. Because he did it for a Republican, if convicted in New York, he would probably get prison time. This is a place where you can get a slap on the wrist for armed robbery, but they take it very seriously when conservatives break the law.

Cohen may be playing it smart. If he catches a felony conviction, he will, at the very least, be suspended from practice. He will also go to prison. If he merely turns on Trump, suspension or disbarment is all he has to worry about. Better to lose your career than to lose your career and your liberty.

Even if the bar were to leave Cohen alone, who would hire him now? Only a moron. His other clients must be calling him, demanding that he destroy his recordings of them. They are surely dropping him and hiring new people. Who would hire a lawyer who turns on former clients?

He may be panicking. It may be that Mueller’s case against him is weak, and Cohen may not know it. It could be that a good lawyer would have figured this out for Cohen by now. It seems like Mueller gave Cohen a little squeeze, and Cohen burst like a pimple instead of considering his options. Maybe he’s a dream snitch.

I don’t know what kind of legal advice he’s getting. If I were him, I would hire a top criminal lawyer and go into seclusion. That’s what intelligent defendants do. Everything he says that hurts his defense can be used against him in court. All of his eccentric actions can be brought up. He’s not just his own attorney; he’s a future witness, via an exception to the hearsay rule (declarations against interest). He should hire a good lawyer and let him do the talking.

Cohen hired Lanny Davis, a former Clinton apologist who loves cameras. I have never seen any reason to believe Davis is a great legal light. Lately I’ve seen a lot of evidence that he’s a fool. He’s letting Cohen destroy himself. He should make a DVD called “Clients Gone Wild.”

Cohen went to the nation’s worst law school. He may not be the greatest lawyer on earth. You can be fairly dumb and get rich practicing law, if you have a ton of brass and you stay away from anything intellectually demanding. Maybe Cohen has no idea what he’s doing.

I should retract that. He definitely has no idea what he’s doing. If he knew what he was doing, he would not have paid off a stripper during a campaign. He would have researched the law and found out he was inviting prosecution. Oddly, his lack of foresight may have insulated Trump from prosecution while landing himself on the griddle. His rash payoff may put him in prison, and his slimy recordings may keep Trump in the clear. With the worst intentions, he may have done what a lawyer is supposed to do. He may have fallen on his sword for a client.

People are ridiculing Trump (of course) for criticizing Cohen’s underhanded recording practices. If they couldn’t criticize Trump for that, they would criticize him for breathing. Trump is absolutely right. There are times when a lawyer has to take steps to protect himself from a client, but you don’t do it by surveilling him without permission. There is no way to make that fly in front of a bar committee.

It’s okay for lawyers to protect themselves from attacks from clients. Lawyers have to think about malpractice a lot. It’s normal to document things you tell clients. It’s normal to document their consent when you do things for them. What Cohen did is different. He tried to set a client up for blackmail and prosecution.

A lawyer may oppose a former client in court, under certain conditions. He can’t go after a former client in the same open matter in which he represented him. Cohen is doing that now.

In order for Trump to get in trouble, Cohen will have to show that Trump knew in advance that Cohen was going to do something illegal for him, or he will have to show that Trump found out later and did something illegal to cover it up. It doesn’t look like that will happen. If not, there will be a lot of suffering in newsrooms.

Liberal journalists are like dogs forced to balance juicy Trump-shaped dog biscuits on their quivering noses. They may look all they want. They may smell the prize. Slobber may run down their cheeks. But they never get to taste. I don’t think they ever will.

I took a course in ethics, and I’ve had to consume a whole lot of continuing legal education materials related to ethics. I’m wondering what that was all about. Was I supposed to take it seriously? Maybe the joke is on me. Look how prominent lawyers act.

The Clintons are lawyers. Cohen is a lawyer. Michael Avenatti is a lawyer. They’re revolting. No sane person would trust any of them. Even Rudy Giuliani, a former mayor and prosecutor, is acting strangely. He practices in front of TV cameras, and he makes legal and factual claims he has clearly not researched.

You’re not really supposed to practice in front of cameras. Even when it’s within the rules of ethics, it stinks. If you’re determined to do it, you should be 100% sure you’re helping your client and avoiding provoking your judge.

Seems like Alan Dershowitz is the only attorney who even glances at the law before he talks on TV. I’m okay with his appearances, because he’s not involved in the cases he discusses. Why is he doing better work than the people who have the most at stake?

People are disappointing. My mom and Lex Luthor said, “People are no damn good.” I’ll just say they’re disappointing. This is not what the practice of law should look like. There are many lawyers all over the country, doing it right. It doesn’t have to be a TV circus. TV doesn’t make you a good lawyer. It may make you a rich lawyer, but if you’re on TV regularly, chances are, you’re a hack and a disgrace to the profession.