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Trump Pardons Won’t Shield Lawyers Disciplined for Ethics

Dec. 24, 2020, 3:13 PM

Attorneys who receive presidential pardons are absolved of federal criminal wrongdoing but it’s no protection against bar sanctions or a guarantee they’ll be reinstated to practice if they’ve already been sanctioned, ethics experts tell Bloomberg Law.

A presidential pardon “relieves a criminal or a criminal defendant of the punishment but it doesn’t necessarily have any effect on the ethics violation,” said Saul Jay Singer, senior legal ethics counsel to the District of Columbia Bar.

Singer and other legal experts interviewed wouldn’t discuss specific cases but said the intersection of pardons and professional sanctions presents an interesting question, one not dissimilar to how a White House pardon extends to federal crimes but not violations of state law.

President Donald Trump has so far issued more than 70 pardons—41 in the past two days—and more are expected before he leaves office next month.

Among the lawyers who received pardons are former 2016 Trump campaign chief Paul Manafort, an ex-Big Law partner, who was disbarred after a bank fraud conviction.

Alexander van der Zwaan, an ex-Skadden associate in London was also pardoned. Van der Zwaan pleaded guilty in the special counsel investigation of Russian election interference and was disbarred in the U.K. in 2019.

Trump’s personal lawyer, Rudy Giuliani, a former U.S. attorney and New York mayor who’s under federal investigation, has discussed a preemptive pardon with the president, the New York Times has reported. In November, Rep. Bill Pascrell, Jr. (D-N.J.), filed ethics complaints with disciplinary authorities in five states seeking to disbar Giuliani.

Character and Fitness

Disciplinary matters speak to a lawyer’s character and fitness to practice so a pardoned lawyer can still be unfit to practice even if pardoned, or charged but not convicted of a crime.

A disbarred lawyer could ask for reinstatement, but the process depends on the lawyer’s state bar rules, said Jan L. Jacobowitz, director of the University of Miami School of Law’s Professional Responsibility & Ethics Program.

Some jurisdictions require lawyers to wait a certain amount of time before petitioning for reinstatement, like the District of Columbia and New York, while others including Nevada and New Jersey have permanent disbarment.

Lewis “Scooter” Libby, whom Trump pardoned in 2018 for obstruction of justice and perjury, was reinstated to the D.C. bar in 2016 after being disbarred in 2009.

But Jacobowitz notes that “it is the idea that there is a character and fitness component to being admitted to the bar that carries through to the evaluation of a reinstatement.”

A criminal conviction also can serve “as an express lane to discipline,” said Keith Swisher, an ethics lawyer in Scottsdale, Ariz., adding that sanctions can be applied even if there’s no guilty finding.

Manafort, for instance, resigned from the Connecticut bar and was disbarred in 2019 by the U.S. Court of Appeals for the District of Columbia Circuit. He’d been convicted of bank fraud and pleaded guilty to other charges including obstruction of justice in Robert Mueller’s Russia investigation.

In general, it’s likely a pardon would have little effect on the disciplinary process simply because of timing, said Lucian T. Pera, a partner with Adams & Reese in Memphis.

“After all, many folks are not pardoned till much later after the crime. So the disciplinary process might be well over,” Pera said.

If the timing was right, however, an attorney “could argue that the pardon was a factor that should weigh in favor of mitigation,” he said.

But at the end of the day, “the disciplinary track runs separate from the criminal track,” said Noah D. Fiedler, a partner with Hinshaw & Culbertson in Milwaukee.

To contact the reporter on this story: Melissa Heelan in Washington at mstanzione@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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