• Max Stearns

Michael Cohen, Conrad Murray, and the Challenge of Professionalism

In the UK, Barristers, those coifed lawyers who argue in court, are independent of Solicitors, whose careers more closely resemble lawyers within the United States. Here, lawyers typically join together in firms of various sizes and specialties, and this includes lawyers who argue in court. Within the US, the functions of Barrister and Solicitor are merged. In the British model, the independence of Barristers is designed to ensure a degree of professional detachment and commitment, signaling that the courtroom advocate brings a perspective less likely to be influenced by the long-term association with an established client.

Although the US system is different, professionalism nonetheless demands perspective, which comes with a level of detachment. This is especially important as pressures mount to comply with a client’s sometimes improper demands. The challenge of professionalism—detachment from the very persons you are dedicated to serve—isn’t unique to law. Medical doctors are bound to the Hippocratic Oath, whose ethical obligations sometimes run counter to the immediate desires of patients. “First do no harm” does not mean ensuring that all patient wants are met. As with lawyers, there is a risk of being too close. The danger appears to have been realized in the case of Dr. Conrad Murray, who was convicted of involuntary manslaughter for giving Michael Jackson excessive dosages of Propofol outside a facility, such as a hospital, that could ensure proper monitoring, leading to the singer’s death. Working for one wealthy patron, or patient, risks undermining the perspective that comes with detached professionalism.

Although Michael Cohen represented Donald Trump; an RNC official, whose liaison with a Playboy model resulted in an unwanted pregnancy; and Sean Hannity, as far as his legal practice went, Cohen was predominently a one-client lawyer. Hannity claims to have paid Cohen $10, perhaps to maintain privilege, and the other client was connected with the 2016 campaign. Both Murray and Cohen appear to have lost sight of their respective professional obligations, which necessarily demands sometimes saying “no” even to a patron who, by dint of wealth or power, insistently expects only to hear “yes.”

Certainly, it is possible to work professionally for one individual or organization, but doing so effectively and professionally can require an especially strong moral fiber. The danger of incremental adjustments to accommodate, or to curry favor, is sometimes too much for mere mortals to bear. At a minimum, those who work in such environments must think very carefully about whether those they work for will respect their professionalism even when the price is accepting an answer they do not like.

A similar challenge arises for lawyers focused on a single mission, such as a targeted investigation. In the landmark Supreme Court case, Morrison v. Olson (1988), the Supreme Court rejected a constitutional challenge to the Ethics in Government Act. The statute insulated the Independent Prosecutor (IP) with a for cause removal provision, thereby protecting him from, among other interferences, presidential removal power. The Morrison Court rejected the claim that the President must have exclusive removal authority over the IP given that the IP performed core executive functions. Chief Justice Rehnquist instead reasoned that, as a result of the IP’s limited mandate, the insulation would not undermine the President in exercising his essential functions.

Justice Scalia’s Morrison dissent is, in my view, his greatest opinion. I thought it was correct originally, and despite my ongoing worry that Trump might fire Special Prosecutor, Robert Mueller, whose protections derive not from a statute (the Ethics in Government Act has since lapsed), but from more vulnerable Department of Justice regulations, I still believe Scalia was right. Although much of Scalia’s analysis is about separation of powers and the unitary executive, what follows informs concerns of professional detachment. Here is a quote:

[An] additional advantage of the unitary Executive [is] that it can achieve a more uniform application of the law. Perhaps that is not always achieved, but the mechanism to achieve it is there. The mini-Executive that is the independent counsel, however, operating in an area where so little is law and so much is discretion, is intentionally cut off from the unifying influence of the Justice Department, and from the perspective that multiple responsibilities provide. What would normally be regarded as a technical violation (there are no rules defining such things), may in his or her small world assume the proportions of an indictable offense. What would normally be regarded as an investigation that has reached the level of pursuing such picayune matters that it should be concluded, may to him or her be an investigation that ought to go on for another year. How frightening it must be to have your own independent counsel and staff appointed, with nothing else to do but to investigate you until investigation is no longer worthwhile -- with whether it is worthwhile not depending upon what such judgments usually hinge on, competing responsibilities. And to have that counsel and staff decide, with no basis for comparison, whether what you have done is bad enough, willful enough, and provable enough, to warrant an indictment. How admirable the constitutional system that provides the means to avoid such a distortion. And how unfortunate the judicial decision that has permitted it.

There is no small amount of irony in quoting an opinion by a most conservative jurist, questioning the constitutional validity of the Independent Counsel statute to criticize Michael Cohen, Trump’s private attorney, especially when Trump has sought out ways to end the Special Prosecutor’s ongoing investigation as it has gotten closer and closer to Trump’s personal affairs. Of course, President Nixon fired Archibald Cox, who also lacked statutory insulation, in the Saturday Night Massacre, a move that severely backfired, ultimately ending his presidency. Although I continue to hope that Trump internalizes that political lesson, depending on what he believes the investigation will ultimately reveal, he risks dangers on both sides. Trump, who is not a master of agility and nuance, appears left to walk a tightrope alone.

My immediate point is not about the Mueller investigation. It is about professionalism. As I often tell my students, there is no single path forward to success. Every lawyer has to find her or his special talent and drive it home. But just as lawyers have to play to their strengths, so too they have to be attentive to their weaknesses. Having personal weaknesses is perfectly normal and entirely human; imagining not having weaknesses is the problem. If it takes special fortitude to navigate a one client, or one investigation, world, those considering such a path need to understand their own risk of succumbing to those ongoing incremental accommodations inevitably perceived as necessary to keep the client happy, or to stay on mission. The price for those lacking self-awareness along with fortitude can be devastating.

I welcome your comments.


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