F. Scott Fitzgerald was absolutely wrong: there are second acts in American life. This is even true — perhaps especially true — for people who have done wrong and been caught in big, splashy ways.
That’s not all bad. Don’t we believe in redemption? But sometimes it seems that American culture has commodified the process. You do your first media tour as part of your wrongdoing, your second to deny the charges against you, and your third to proclaim your rehabilitation and dish on the terrible, terrible people who led you astray. The third phase traditionally comes with a book.
This month’s example is our friend Michael Cohen, former Trump fixer and says-whoing mouthpiece, now free from prison and ready for his third fifteen minutes. Mr. Cohen would like for us to know how bad the President, his former client, was. He tells us so in videos and a book and related flurry of publicity, ready to spill salacious and appalling secrets from his time at Trump’s side.
This is not admirable.
Admitting wrongdoing is admirable. Withdrawing from criminal conspiracies is admirable. But lawyers have duties to clients. That includes a duty of confidentiality. That duty is much broader than the attorney-client privilege, which covers confidential communications between attorney and client. New York’s Rules of Professional Conduct are typical, and they describe confidential information as including:
“Confidential information” consists of information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential. “Confidential information” does not ordinarily include (i) a lawyer’s legal knowledge or legal research or (ii) information that is generally known in the local community or in the trade, field or profession to which the information relates.
There are exceptions to the rule — you can reveal confidential information if the client consents, or to prevent a crime, or to defend yourself in court. There is no general exception for “as I knew, my client is a huge crook, and I have a book deal.” There is no crime-fraud exception to the duty of confidentiality that permits you to go on CNN.
This is a wrong without a remedy. Cohen is already disbarred. Trump could sue him, but that would merely emphasize the confidential information and, at very best, transfer some money from Cohen to Trump. Cohen’s act is, in effect, in open defiance and contempt of his obligations, relying on the unstated premise that knowing the truth about Trump outweighs them.
But that’s not what lawyers are for. We’re not in this for our own good. The law is not, to paraphrase Shaw, a gymnasium constructed to exercise our moral character. We’re here to serve clients, not ourselves. We don’t get to pick and choose which clients deserve our fidelity to the Rules of Professional Conduct. If anyone ever deserved to be betrayed, it’s Trump, but that’s not a lawyer’s call to make.
The essence of being a good lawyer is not success in court or in deals, but in service and duty. A lawyer who violates their duties to their client is a bad lawyer.