Trumping Lawyers' Suggested Ability to Improperly Influence Government Agencies and Officials

Abstract

President Donald Trump was represented by several lawyers during Special Counsel Robert Mueller’s investigation into possible Russian interference in the 2016 election. Two of those lawyers, John Dowd and Rudy Giuliani, made statements regarding their relationships with Mueller that arguably implied their ability to influence the Russia investigation. Such statements court trouble. Model Rule of Professional Conduct 8.4(e) makes it professional misconduct for a lawyer to “state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law.” The ethical prohibition against lawyers’ suggestion of the ability to improperly influence government agencies or officials recognizes that the legal profession is harmed when lawyers state or imply their ability to improperly sway government officials or entities because all lawyers consequently earn an unfair and unsavory reputation as “fixers” rather than as zealous advocates. Moreover, lawyers’ claims or suggestion that they can improperly influence government agencies or officials serve no legitimate purpose and undermine public confidence in the legal system, even if the lawyers are merely puffing or the implication is false. Unfortunately, Model Rule 8.4(e) and state analogs do not always appear to be well understood by lawyers. Certainly, all lawyers should recognize that extreme misconduct such as soliciting money from clients to bribe judges or other government officials violates the rule, as does a lawyer’s simple suggestion that she may be able to bribe a judge, but less obvious forms of misconduct may also violate Rule 8.4(e).