Why It’s Easy for Attorneys to Enable and Encourage Illegal Acts

In its investigation of the Jan. 6, 2021 attack on the US Capitol, the US House Select Committee referred to the Justice Department four potential criminal charges against former President Donald Trump.

Yet lost in the executive summary was a recommendation that Trump attorney and former law professor John Eastman also be charged with obstruction of a government proceeding and conspiracy to defraud the US.

The basis of the claim is that he helped hatch the scheme to encourage former Vice President Mike Pence to reject electoral votes from certain states and encourage filing of false electoral vote certificates. In the end, Eastman’s lawyering enabled Trump’s bad behavior.

Eastman appears to have recommended this approach to Trump even though, according to the January 6, report, he knew his arguments had no basis in law or facts. Why did he do it?

Questionable Legacy

Eastman follows a long line of attorneys’ illegal behavior. Richard Nixon’s attorneys played a pivotal role in the Watergate coverup. Lawyers drafted the documents that enabled Enron, Worldcom, and other companies to lie to investors a generation ago, and did so again during the financial meltdown in 2008.
Attorneys for George Bush authored the “Torture Memos,” declaring that waterboarding and other aggressive interrogation techniques were not illegal.

Now Eastman joins Trump attorneys Rudy Giuliani, and Sidney Powell, who have faced charges or discipline for advancing theories of stolen elections, voter fraud, and meritless legal theories to overturn 2020 election results. Their legal skills and actions were potentially as instrumental in the events that led to the storming of the Capitol as Trump’s own words and deeds.

Can’t Plead Ignorance

In all three cases it appears the attorneys knew what they were doing was wrong, but proceeded anyway. They failed in their most basic ethical duties as attorneys—truthfulness and candor to courts and independence of judgment. These duties are mandated in every state by the courts and the rules of professional conduct for attorneys.

Legal ethics rules are taught in every law school in the nation. For the last 30-plus years, in order to practice law, one must pass an examination demonstrating fluency in these rules and pursue continuing legal education to reinforce that knowledge.

But despite such rules and threat of disbarment and criminal sanctions, some attorneys still act badly. Why do knowledgeable and good attorneys such as Eastman do bad things? I have spent a quarter of a century as a law professor teaching legal ethics to law students, and this is a question I regularly pose.

What’s the Motivation?

One answer is that Eastman is simply an unethical person. Generally, we might think that good people do good things and that bad people do bad things. Character may be a comforting answer, as it convinces the rest of us who consider ourselves good that we will rarely slip or do bad things. But yes, good people can do bad things.

Maybe money is the root of all evil. Perhaps attorneys do bad things because their clients are paying them. This turns attorneys into hired guns, plying their services to make a living, and therefore they will do whatever it takes to please a client. Even money might persuade an otherwise ethical but financially desperate attorney to turn a blind eye to clients’ bad acts.

Reform Ethics Education

But perhaps the problem is the nature of legal education. From day one, law students are taught to be zealous advocates for their clients. Their task is to represent them and envision or create ways to view whatever their clients want, even if illicit, as legal. Rarely does law school encourage attorneys to tell their clients no or to conform to the law.

Additionally, legal training encourages students to be able to argue both sides of an issue. On one level, this fosters critical legal thinking. But on the other hand, it also encourages moral relativism or indifference. We teach attorneys to advocate for clients, but we often forget to ask them whether their clients should be doing what they are doing.

Law school and the practice of law draws a false distinction. When attorneys talk about ethics they discuss legal ethics—the formal rules you must follow and for which failure to do so could get you disbarred.

But real ethics—the rules of human conduct that guide us in our everyday life—are often ignored. Legal education leaves many with the impression that what is ethical in other aspects of our life is different from what is ethical as an attorney. The two should be the same, and what is legal should be the same as what is ethical.

The rules of professional conduct for attorneys give lip service to the idea that our duties include promoting democracy. Yet there is little incentive in an adversarial system to put social justice and doing the right thing ahead of client interests.

There are many possible reasons while Eastman gave the advice he did to Trump, despite the fact he knew or should have known his advice was wrong. Legal education and the practice of law must do a better job discouraging attorneys from doing what Eastman, Giuliani, and Powell appear to have done in their legal practice.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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David Schultz is a professor of law at the University of Minnesota, where he teaches professional responsibility (legal ethics for attorneys), and is a professor of political science at Hamline University.