I retired from practicing law after 40 years a year and a half ago, and I haven’t retained my license, so I don’t profess to state a legal opinion here. I taught professional responsibility for a number of years before retiring.
Comment 2 to ABA Rule of Professional Conduct 4.3 says that in communications with “unrepresented persons whose interests may be adverse to those of the lawyer’s client … the possibility that the lawyer will compromise the unrepresented person’s interests is so great that that the Rule prohibits the giving of any advice, apart from the advice to obtain counsel. Whether a lawyer is giving impermissble advice may depend on the experience and sophistication of the unrepresented person, as well as the setting in which the behavior and comments occur.”
The language of Rule 4.3 itself arguably isn’t explicitly quite so broad. It says that "When a lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make a reasonable effort to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person “are or have a reasonably possibility of being in conflict with the interests of the client.”
Three interesting takeaways from tonight’s The Last Word with Lawrence O’Donnell concerning Marc Kasowitz:
1) Kasowitz is NOT licensed to practice law in the District of Columbia, which is a violation of New York State Bar Rules of Professional Conduct.
RULE 5.5. Unauthorized Practice of Law
(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction.
2) Kasowitz violated NY State Bar Rules by advising White House staff not to lawyer up.
RULE 4.3. Communicating With Unrepresented Persons
In communicating on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person other than the advice to secure counsel if the lawyer knows or reasonably should know that the interests of such person are or have a reasonable possibility of being in conflict with the interests of the client.
[emphasis mine]
Kasowitz has also committed misdemeanor “Practicing Law Without a License” in violation of District of Columbia law, which he clearly did when he wrote and disseminated his now-infamous “I am Marc Kasowitz, Predisent[sic] Trump’s personal lawyer” statement. This will also no doubt attract the attention of the District of Columbia Bar association.
3) Does Kasowitz have a security clearance? Hmm.
And just to make everything more fun, Kasowitz’s clients include Oleg Deripaska, a Russian oligarch who is close to President Vladimir Putin and has done business with Trump’s former campaign manager Paul Manafort. Kasowitz also represents Sberbank, Russia’s largest state-owned bank.
Because I’m a fun guy I’ve emailed the District of Columbia Bar asking 1) Why they are not raising hell about Kasowitz practicing law without a license, and 2) Whether he would even be eligible for admission to the DC Bar given his blatant violations of NY Bar Rules?
I’ll let everyone know what I hear back, if anything.
Where can I lay money down on Sarah Huckabee Sanders?
One of the (few) satisfying things to come out of this (hopefully rapidly and smoothly resolved) Trump nightmare will be seeing the look of complete bafflement and betrayal on SHS’s face when she realizes she’s been so completely conned by the world’s most obvious conman.
It’s going to be like a real life episode of Peep Show when Mark or Jez realize what a total shit they are.
