Weaponizing the confirmation process damages government
College admissions scandal underscores importance of attorney ethics in America
The college admissions scam clings to a news cycle that's otherwise awash in scandal after scandal from the Trump White House - including the indictment, guilty plea, sentencing and congressional testimony of President Trump's former personal lawyer Michael Cohen.
A common thread in both stories involves lawyer ethics, a cornerstone of American democracy - and that the legal profession is letting the American people down.
Cohen's plea agreement was accompanied by a statement claiming he acted at Trump's direction. That allegation was accepted in open court by a federal judge and confirmed by the Department of Justice in its sentencing memo.
DOJ recently released an FBI affidavit supporting the warrant to raid Cohen's hotel room and office. A whopping 18 pages are redacted under the heading, "The Illegal Campaign Contribution Scheme" - possibly shielding additional information about Trump's involvement. That crime was executed by a practicing lawyer.
Lawyer ethics were again implicated when Cohen testified before Congress that his prior congressional statement - for which he pled guilty to lying - was doctored by Trump's personal lawyers. That is a serious ethical problem if it meant a material change to Cohen's testimony (setting aside potential obstruction of justice).
Then there's former Trump campaign chairman Paul Manafort's lawyer, who distorted federal Judge Amy Berman Jackson's comments during his sentencing hearing. Reportedly, she rebuked the defense team because "the 'no collusion' refrain that runs through the entire defense memorandum is unrelated to the matter at hand."
Yet, minutes later on the courthouse steps, Manafort's lawyer suggested that the judge's statement had cleared the Trump campaign of colluding with Russia - that no collusion had occurred, full stop - when that's not what she said. Indeed, she could not have said that because she does not have access to the evidence that special counsel Robert Mueller has so far collected on the subject. All she said was that the particular case before her was not about Russia.
Which brings me to the college admissions scandal. For attorneys and legal educators like myself, one of the most shocking tidbits is the involvement of the former co-chair of a major international law firm who allegedly paid college exam proctors $75,000 to change his daughter's answers on the test. Caught on wiretap stating that "I'm not worried about the moral issue here. I'm worried about the, if she's caught doing that, you know, she's finished," the lawyer apparently made the payoff with full knowledge that it was a shady maneuver, at best.
There are criminal laws, folks, and there are model rules of professional conduct for lawyers. If the former are violated, people can go to jail. If the latter are breached, lawyers can be sanctioned or disbarred. Those rules extend beyond actions that technically qualify as practicing law.
Indeed, an entire category of professional rules for attorneys has to do with "maintaining the conduct of the profession." Rule 8.4(c) says it's a violation to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation." Bribing an ACT administrator to change an applicant's test responses qualifies.
Rule 8.4(d) forbids lawyers from engaging "in conduct that's prejudicial to the administration of justice." Flat-out lying about what a judge said would fit that bill. And it should come as no surprise that commission of a federal felony is a no-go.
Rule 8.4(b) renders it professional misconduct to "commit a criminal act involving dishonesty, fraud, deceit or misrepresentation." Cohen lost his license to practice law as a result of his crimes, and rightly so.
There are other relevant rules, including state-by-state ones. In New York, where the law firm partner caught in the college-admissions scandal practiced, the rules' preamble explains why it matters that American lawyers "maintain the highest standards of ethical conduct." It's a rationale that sweeps across government ethics, too - including at the highest echelons of the executive branch.
Lawyers get a bad rap, to be sure, but without them our system of government would be unsustainable. It's through lawyers that the courts are invoked to adjudicate and resolve injustices, including whether or not to put people in prison. An individual "right" - constitutional or otherwise - means nothing if it cannot be enforced. It's like a speed camera: People slow down because they know they'll otherwise get caught for driving over the limit of the law. Lawyers are essential to that process.
In an era where accountability for wrongdoing in public office is at a crisis point, it's incumbent on the legal profession to toe the line for the rule of law. That people practicing at the most elite level of private and government service have lost their way is very sad - for democracy, that is.
Kim Wehle a former assistant U.S. attorney, a former associate independent counsel in the Whitewater investigation, is a professor at the University of Baltimore School of Law, a CBS legal analyst and a contributor to the BBC. Her forthcoming book, "How to Read the Constitution - and Why," will be published in June. Follow her on Twitter @kim_wehle.