Robert Mueller. Photo: White House/Pete Souza
Can lawyers represent hostile governments that have been charged in the Mueller probe?
The obvious answer to this question is yes. Even the most despised client deserves representation. This is especially true in criminal cases. The ethical rules make it clear that lawyers are not morally accountable for the actions of their clients. This is so that even unpopular litigants can find representation. But the question is more complicated when the client is an individual or entity controlled by a hostile foreign government.
The Mueller investigation has highlighted some of the potential problems for lawyers who choose to represent hostile foreign governments or individuals and entities connected with those governments.
A court recently scolded lawyers from Reed Smith for their conduct in representing Concord Management and Consulting LLC, a Russian consulting firm indicted by Special Counsel Robert Mueller. In the course of defending their client, the lawyers attacked the special counsel, the media and the court. The court, echoed by the press and other observers, criticized the lawyers as both unprofessional and ineffective. The court and critics may be right that this strategy is ineffective if Concord’s goal is to minimize criminal exposure.
But Concord is unlikely to suffer the consequences of the criminal case. Certainly, no individual connected with the company will end up in court. It’s hard to know what the client has instructed its lawyers. Concord may, however, have no interest in “winning” the case. The sole interest may be in using the criminal case to destabilize American institutions. If that is the client’s goal then the lawyers may, in fact, have been quite effective.
But assuming that is the case, is it ethical for lawyers to try to undermine American institutions on behalf of a client? In the Chicago 7 trial in 1969, William Kunstler and Leonard Weinglass represented defendants accused of inciting riots in connection with anti-Vietnam war protests.
During the course of the trial, some of the lawyers and clients tried to disrupt the proceedings, using the trial as a means of political protest. The goal was, in part, to criticize and mock American institutions to promote change. Most lawyers and ethics experts would say that this kind of behavior was permissible. The Chicago 7 had a lawful goal and the lawyers helped their clients achieve it.
But the Concord case is, at least arguably, different. Unlike the Chicago 7, Concord is a foreign client whose goal is not to promote a competing vision for America as a means to improve the country and help it live up to its aspirations. Its goal may be to use the court proceedings to undermine American interests by destabilizing its institutions.
Every lawyer takes an oath to uphold the American constitution. Given that oath, a client’s goal to undermine the American legal system may not be a legitimate one, and the lawyers are not free as they would normally be to help their client pursue it. Even if the goal is lawful, it is at the very least problematic since lawyers are supposed to promote not undermine the administration of justice.
Lawyers have represented accused terrorists who choose not to legitimate the proceedings by refusing to participate and no one doubts the propriety of those lawyers’ conduct. But that is different from actively assisting a client who faces no criminal consequences in a sustained effort to sow discord in the American courts.
In other cases related to the Mueller investigation, lawyers have been involved in representing foreign entities. Lawyers from Skadden, Arps, Meagher, Slate & Flom, for instance, produced a report that was used to help support the prosecution of Yulia Tymoshenko, the political opponent of the Ukraine’s then pro-Russia president Viktor Yanukovych. The firm reportedly expressed reservations prior to issuing the report, stating in an email that there is virtually no evidence that Tymoshenko possessed the necessary criminal intent. Based on the information in the public record, this report seems ethically dubious.
To lend your professional reputation to what seems by all accounts a purely political foreign prosecution of an innocent person could be seen as assisting in criminal or fraudulent conduct. Even if the client’s conduct is not illegal, it is certainly problematic for a lawyer to assist a country in undermining rather than promoting justice.
There are other cases, no doubt, in which lawyers are ethically representing the interests of hostile foreign countries, entities, and individuals. But these lawyers ought to be careful because their clients’ interests may reach beyond the individual representation. They may be seeking to use their lawyers to pursue unlawful or ethically problematic goals. In any representation, there is a risk that a client may manipulate the lawyer, using the lawyer for nefarious ends. But this risk is greater when the country is hostile to our own. There are landmines that the lawyers must avoid. Mueller apparently referred the lawyers from Skadden to the US Attorney’s office in Manhattan for further investigation.
Even if no lawyer is charged in connection with that case, they are closer to criminal exposure than any lawyer ought to be. Remaining ignorant about their clients’ broader purposes won’t necessarily save lawyers in this context so they ought to be diligent and careful to avoid these potential pitfalls.
The American democratic system is under attack on multiple fronts. This attack has highlighted the importance of the rule of law, independent courts and the professionals who uphold these legal institutions. In this climate, lawyers should be particularly careful not to betray this critical role.
Rebecca Roiphe is a New York Law School professor who teaches professional ethics and criminal law. She is a former prosecutor in the Manhattan DA's office and an expert on legal ethics.
Robert Mueller. Photo: White House/Pete Souza