As revelations continue to drip from former national security adviser John Bolton’s upcoming book, President Donald Trump is accused of directly soliciting the former national security adviser’s help in pressuring Ukrainian officials to smear presidential candidate Joe Biden.
Particularly alarming for lawyers is the allegation that White House counsel, Pat Cipollone, lead trial counsel for the president’s impeachment before the Senate, also attended the meeting, some two months before Trump’s meeting with Ukraine’s President Volodymyr Zelensky. House managers have made analogous allegations. In a Jan. 21 letter to Cipollone, they complained that multiple witnesses testified about raising the Ukraine scheme to deputy counsel John Eisenberg, Cipollone’s direct report.
If the allegations prove ultimately accurate, the question arises whether Cipollone’s attendance was a benign occurrence, or instead manifested poor judgment and possibly even stepped on serious attorney ethics guidelines. The answer resides in the ultimate facts brought forward as implicated by the rules of professional responsibility applicable to the White House counsel.
State Rules of Conduct
Each state has enacted its own version of the ABA’s Model Rules of Professional Conduct, often very similar in language. From recent records, Cipollone is a member of the bars of the District of Columbia and Illinois, and would be bound by both jurisdictions.
D.C., for instance, has its own Rules of Professional Conduct, especially applicable given Cipollone’s current client. In misconduct cases, if the Office of Disciplinary Counsel ultimately finds a violation, depending on severity of the infraction, penalties range from a reprimand by the bar’s Board on Professional Responsibility, public censure by the D.C. Court of Appeals, suspension up to three years or even disbarment.
Notwithstanding the president’s blanket denial of the quid pro quo and Cipollone’s reiteration of these views before the Senate majority, it is yet unknown how the gentleman indeed counseled his client about the meeting. As lawyers will attest, public advocacy on behalf of a client and private legal counsel may be at complete odds; honest advice and zealous advocacy are just good lawyering.
It is entirely possible that, in private company, Cipollone vehemently cautioned Trump about avoiding potential wrongdoings.
As the Senate has just acquitted the president of any “high crimes and misdemeanors” per the Constitution, Cipollone’s own activities are not likely impeachable. It bears mentioning, though, that as counsel, Cipollone was additionally bound by the relevant ethics rule that a lawyer may not assist a client in committing a crime or a fraud. (Rule 1.2 (d))
To be fair, whether Trump’s conduct seeped into such categories, outside of the high crimes, is currently unproven factually and an open legal question. It should be noted, however, that giving a defendant advice is not to be conflated with engaging in a client’s culpable behavior, and the bar recognizes the critical difference between legal analysis concerning conduct and “recommending the means by which a crime or fraud might be committed.” (Rule 1.2 (d) )
Regardless of whether the Ukrainian activities were prohibitive, Cipollone’s decision to try a case where he, himself, is likely a witness may raise concerns. A lawyer may not advocate at trial where he is likely to be a necessary witness, and this meeting and perhaps others tread on this principle. (Rule 3.7) The rule is meant to mitigate prejudice to the opposing party, which here were the House managers, since it blurs the distinction between when trial counsel’s remarks are factual versus an analysis of evidence from others, by way of advocacy. (Rule 3.7  - )
But this is an especially client-driven rule, and tends to arise where a once-represented client faces the same lawyer opposing her in another case. There are in-fact multiple exceptions to the rule, including for uncontested testimony and where disqualification would substantially harm the client. (Rule 3.7)
The bar accordingly balances the prejudice with the interests of the lawyer’s own client, here the president, who is more likely to agree with Cipollone’s remarks. (Rule 3.7 ) Nevertheless, depending on the facts, there is the possibility of prejudice to the House managers and by extension the House.
Another question is whether by his dual role as fact witness and advocate, Cipollone placed himself in the precarious position of potentially misstating, omitting or even knowingly issuing false statements to the Senate. (Rule 3.3)
No lawyer may falsely state either facts or law to a tribunal, the Senate’s role here—albeit not particularly cherished by the present majority—and if such statements were material, he bears a duty to correct it. Here, the presence of the meeting itself was neither mentioned in Cipollone’s Jan. 20 brief bearing his signature, nor in his spoken advocacy before the Senate.
Moreover, both the brief and oral advocacy are replete with statements that the president had no intention of exchanging congressionally allocated assistance for a public admission of wrongdoings by the Bidens, and that any allegations to the contrary are in error. If Cipollone had first-hand knowledge otherwise and knowingly misstated the facts to the Senate, there may be adverse ethical implications.
Attorney-Client Privilege Issues
Also possibly problematic are attorney-client privilege issues depending on facts underlying the meeting. If the expansive presidential privilege advocated by the White House, essentially over all of Trump’s communications, is ultimately invalidated in a court of relevant jurisdiction, privilege over this meeting and others could very well have been lost.
This is in no small part due to the presence of third parties at the meeting, and potentially having acted in the dual advocate/witness role but not asserting privilege before the Senate. But then again, since the privilege belongs to the president who has endorsed Cipollone’s position, the counsel may have little worry here.
The legal ethics of this White House counsel’s conduct remains yet to be seen, particularly as revelations from Bolton, Lev Parnas, and likely additional participants are brought to light. If Cipollone were judged, it should only be by a jury of his peers reviewing the facts fairly, with the public’s interest in mind. Contrary to the Senate’s deliberation, the process must be entirely apolitical in nature.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Cameron Tousi is managing partner at IP Law Leaders PLLC in Washington, D.C., and was a former head of IP for Samsung Electronics. Having represented hundreds of Fortune 100s, multinationals, startups, and venture firms, he regularly advises industry leaders and disrupters alike in their bet-the-company legal matters.