Pat Cipollone, one of President Trump’s lawyer, stated that Republicans weren’t allowed to participate in House depositions. This wasn’t true: 47 Republicans who served on the appropriate committees had the right to attend these depositions, and many did attend. Naturally the “Get all Trump allies’ resistance mob regards this an intentional lie, and is demanding that Cipellone be disciplined for professional misconduct.
Writes legal ethics expert Stacie Rosenzweig, “This is almost certainly a lie rather than a misstatement or misapprehension; I can’t imagine a scenario in which a lawyer with a three-decade career and a reputation for being “well-prepared and even-keeled” would simply not know that.” Her logic is exactly upside down: a lawyer that experienced would not deliberately utter a lie in such a high profile forum where it would certainly be noticed, undermining his credibility to no good end. Sure enough, the factcheckers were on his misstatement like a shot.
The lawyer probably made a mistake, contrary to Rosenweig’s unjustfied certitude.This may have occurred because the false claim that the GOP was shut out of the depositions was a frequent right-wing talking point, and he didn’t check it. The assertion was at best tangential to his argument; I guarantee that no bar association would discipline any lawyer by using the argument, “You’re too good and experienced to make a stupid mistake.” Good and experienced lawyers made mistakes, sometimes astonishing ones.
Rosenzweig asks where Cipellone is barred (she’s barred in Wisconsin). It doesn’t matter, since the Senate trial was in D.C, and D.C. ethics rules apply. However, a simple Google search would have informed her that before becoming White House Counsel, he worked at Stein Mitchell Cipollone Beato & Missner in Washington, DC. He’s a D.C. lawyer, like me. The fact that she didn’t bother to perform this simpe resaerch suggests to me that she wasn’t taking the issue very seriously, and her conclusion reflect that as well.
D.C. Rule 3.3, like the similar rule in the other jurisdictions, prohibits lawyers from making false statements to a “tribunal,” and requires the lawyer to correct any false statements of material fact if they inadvertently make them. The statement in question, however, wasn’t relevant to whether the President committed impeachable offenses, and thus wasn’t material. Rosenzweig should have known this too.
Then there’s the very foggy question of whether the Senate was a tribunal. D.C. Rule 1.0 says a tribunal can be a legislative body, but only if it is acting in an adjudicative capacity. Rosenzweig stated that, but left out the rest of the definition:
A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party’s interests in a particular matter.
Does that sound to you like the Senate in an impeachment trial? Who is that “neutral official” that renders a “binding legal judgment”? There isn’t one, and I’m not certain that a guilty verdict is a “legal judgment” either. Therefore I don’t think the impeachment qualifies under the D.C. Rules definition of a tribunal, and since this is only the third time there has been an impeachment trial, the question has never been asked or answered definitively.
Rosenweig then argues that even if the Senate isn’t a “tribunal,” Cipellone breached Rule 8.4(c) prohibiting conduct involving fraud, dishonesty, deceit or misrepresentation. Obviously lawyers are neither investigated nor sanctioned for every misstatement of fact they make, nor does every such statement rise to the level of an 8.4 violation. If she really thinks that a non-material misstatement of a matter tangential to the Senate trial at best, where the lawyer can credibly say that he was misinformed rises to the level where a bar association would find it necessary to investigate, I don’t think she should be writing a legal ethics blog.
She does mention the Debate Clause, and I give her points for that:
Article I, Section 6, Clause 1, of the U.S. Constitution states in part, for any Speech or Debate in either House, [senators and representatives] shall not be questioned in any other place. The purpose of the clause is to prevent the arrest and prosecution of unpopular legislators based on their political views.
Yet she breezily says that the clause wouldn’t apply to Trump’s lawyers. Really? So a House member like Adam Schiff, who was loose with the facts repeatedly while addressing the same pseudo-tribunal Cipollone did, would face no consequences should he misstate a fact by design or accident, but a non-member lawyer would? That hardly seem fair or logical. In truth, the battle in the Senate was a debate, certainly more than it was a presentation of evidence. Surely all advocates should be subject to the same standards
In summation, the various commentators and left-wing scolds who were demanding that Cipollone be “disbarred” (like The Daily Kos) didn’t know what they were talking about, as is often the case. One of the few accurate things Rosenzweig said in her post was the lawyers very seldom get disbarred, and when they do, it is for very serious ethical breaches, which this was not. What she should have also pointed out that a distinguished lawyer with an impeccable record of ethical conduct, misstating a trivial fact before a non-tribunal in a context probably covered by Article I, Section 6, Clause 1, of the U.S. Constitution would never be investigated nor sanctioned in any way, because such a statement under such anomalous circumstances obviously does not “reflect adversely on fitness to practice law,” which is the requirement for sanctionable misconduct.
I also believe that Stacie Rosenzweig’s analysis was careless and misleading. I assume she can and will do better.