Last week was a pretty eventful week in the area where politics and the law overlaps, and an initially bizarre turn of events that was made more bizarre by subsequent claims injected some questions of legal ethics into events on the national stage again.
What I’m talking about is all stuff you’ve likely already read about. In short story form, it goes like this: the news of the guilty plea of former National Security Advisor Michael Flynn for lying to the FBI, followed shortly thereafter by an incredibly-unwise-seeming Tweet by the current occupant of The White House that was quickly discussed by others on-line as amount to direct incriminating evidence of obstruction of justice by that current occupant, followed then by claims that the current occupant of The White House didn’t actually write that Tweet and that, instead, the Tweet was drafted by one the current occupant of The White House’s personal lawyers, John Dowd.
Now, what do I believe in my heart of hearts happened. That’s easy. I’m a staunch believer in Occam’s Razor, so I believe that the same old man who has consistently, inappropriately used his Twitter account to say stupid things, spew vitriol, and retweet white supremacists and Islamiphobes tweeted something without thinking it through, and did so either without consulting with his counsel or simply with disregard for legal advice he was given about Tweeting about such things. After that, I believe that one of his lawyers, fully recognizing just how problematic the contents of the Tweet were for his client, has decided to try to reduce the impact of the client’s admission by claiming that he was actually the author because that has, in turn, allowed him to claim to have been mistaken about what his client knew at various points in time.
I’m not writing this to claim to be the end-all-be-all on this line of reasoning actualy, but to address two things that I have seen others write about this situation that have bugged me. Those sentiments are: (1) that it couldn’t have been written by the lawyer, Dowd, because the lawyer wouldn’t incorrectly say “pled” instead of “pleaded,” and (2) that if Dowd is lying about having been the one who wrote the Tweet then he ought to be disbarred.
I think both of those sentiments amount to hogwash.
As to the first one, I’m a lawyer – and I like to think I’m a fairly decent one – and I prefer to use “pled.” I’ve seen people point to the AP Stylebook on “pleaded” versus “pled,” and I’m also well aware that Bryan Garner insists that “pleaded” is the proper usage. Nevertheless, I fall into the camp of lawyers like the King & Spalding lawyer quoted back in this ABA Journal piece on its usage, who believe it is the better term to use to indicate the past tense verb form, and would certainly use it even in real-life writing. It is not unfathomable that Dowd might fall into that camp as well. Further, it is damn sure the better term to use on Twitter where character limits matter greatly.
As to the second one, there would definitely be an ethics violation or two (or three) for which Dowd could be charged with violating if he is lying about being the author of the Tweet in question in order to protect his client. Nevertheless, to jump to the notion that the appropriate discipline for that would be disbarment is a bit silly.
A lawyer who would lie about the authorship of a client’s Tweet that could otherwise be an admission of a crime would run afoul of a couple of obvious rules, such as RPC 8.4(c) and RPC 4.1(a). The ABA version of those rules respectively provide as follows:
Rule 8.4: Misconduct
It is professional misconduct for a lawyer to:
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
Rule 4.1: Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person.
The lawyer could also be subject to a charge of violationg RPC 7.1 which people often forget does not only apply to advertisements. The ABA version of that rule provides:
Rule 7.1: Communications Concerning A Lawyer’s Services
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.
In this sort of context, an interesting question could be raised about whether the lawyer would also have violated RPC 3.4(a). The ABA version of that rule provides:
Rule 3.4: Fairness to Opposing Part and Counsel
A lawyer shall not:
(a) unlawfully . . . alter . . . a document or other material having potential evidentiary value.
But, the idea that such an offense or offenses by Dowd would be punishable by disbarment is a bit silly. A quick review online of publicly-available information shows that Dowd has never previously been the subject of any public discipline. He’s been practicing for 50 years without even receiving a public censure. Unless he managed to hire a lawyer to represent him who has been as sloppy as the lawyers folks associated with the current administration have hired to defend them, then I can’t imagine that outcome coming about if any disciplinary case were ever brought against him.
And, on that subject, given Dowd’s other missteps along the way in this high-profile setting, it weirdly is a bit more difficult to rule out the possibility that he actually was the one who exercised the poor judgment of creating the content of, and presumably even sending, that Tweet for his client.