Trump Trials – A Survey in Legal Ethics
An interview with Profs Bruce Green & Rebecca Roiphe
The high-profile trials against former President Donald Trump offer valuable insights into legal ethics. In this thought-provoking conversation, former prosecutors and ethics professors Rebecca Roiphe and Bruce Green examine the various Trump cases under the ABA Model Rules.
Roiphe and Green explore prosecutorial discretion, the limits of attorney privilege, and the line between providing legal advice and enabling a client's misconduct. Their discussion examines the actions of key figures from Michael Cohen to Rudy Giuliani to the judges and prosecutors leading the cases.
Rebecca Roiphe is a former former Assistant District Attorney in Manhattan and a professor of law at New York Law School. Bruce Green is a former Assistant U.S. Attorney (SDNY) and a professor of law at Fordham Law School.
Additional Resources
ABA Rule 1.2(d) (Scope of Representation and Allocation of Authority Between Client and Lawyer)
Explanation: This rule prohibits a lawyer from counseling or assisting a client in conduct that the lawyer knows is criminal or fraudulent. However, a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law.
ABA Rule 1.6 (Confidentiality of Information)
Explanation: This rule mandates that a lawyer must not reveal information related to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or the disclosure is permitted by the rule.
ABA Rule 1.7 (Conflict of Interest: Current Clients)
Explanation in part: This rule prohibits a lawyer from representing a client if the representation involves a concurrent conflict of interest, unless the lawyer reasonably believes they can provide competent and diligent representation to each affected client, and each client gives informed consent, confirmed in writing.
ABA Rule 1.8 (Conflict of Interest: Current Clients: Specific Rules)
Explanation in part: This rule addresses specific conflict of interest situations, including prohibiting lawyers from engaging in sexual relationships with clients if such relationships cause a conflict of interest.
ABA Rule 1.9 (Duties to Former Clients)
Explanation in part: This rule prohibits a lawyer from representing another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client, unless the former client gives informed consent.
ABA Rule 1.11 (Special Conflicts of Interest for Former and Current Government Officers and Employees)
Explanation in part: This rule addresses the specific conflict of interest concerns for lawyers who have served as public officers or employees and their ability to represent private clients in matters in which they were personally and substantially involved while in public service.
ABA Rule 1.13 (Organization as Client)
Explanation in part: This rule addresses a lawyer’s duty when representing an organization, clarifying that the lawyer represents the organization through its duly authorized constituents.
ABA Rule 1.16 (Declining or Terminating Representation)
Explanation in part: This rule specifies the circumstances under which a lawyer must decline or terminate representation. It includes situations where continuing would result in a violation of the rules of professional conduct or other law, the lawyer's physical or mental condition materially impairs their ability to represent the client, or the lawyer is discharged by the client.
ABA Rule 3.3 (Candor Toward the Tribunal)
Explanation in part: This principle is embedded in several rules, notably Rule 3.3 (Candor Toward the Tribunal). Rule 3.3(a)(3) specifically states that a lawyer shall not knowingly offer evidence that the lawyer knows to be false.
ABA Rule 3.4 (Fairness to Opposing Party and Counsel)
Explanation in part: This rule prohibits a lawyer from unlawfully obstructing another party's access to evidence or unlawfully altering, destroying, or concealing a document or other material having potential evidentiary value.
ABA Rule 3.4(e)
Explanation in part: Rule 3.4(e) states that a lawyer shall not, in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused.
ABA Rule on Extrajudicial Statements (Rule 3.6)
Explanation in part: Rule 3.6 covers trial publicity. It states that a lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
ABA Rule 3.7 (Lawyer as Witness)
Explanation in part: This rule states that a lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness.
ABA Rule 3.8 (Special Responsibilities of a Prosecutor)
Explanation in part: This rule outlines the ethical obligations of prosecutors, including the duty to refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause, and the duty to disclose evidence that negates the guilt of the accused.
ABA Rule 4.1 (Truthfulness in Statements to Others)
Explanation in part: This rule requires lawyers to be truthful in their statements to others and prohibits them from making false statements of material fact or law.
ABA Rule 8.4 (Misconduct)
Explanation in part: This rule defines professional misconduct for a lawyer, including engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, and conduct that is prejudicial to the administration of justice.
About Profs Bruce Green & Rebecca Roiphe
“It's impossible not to feel the power to act as a prosecutor. It's such a huge responsibility.”
Professor Bruce Green is the Louis Stein Professor at Fordham Law School, where he directs the Louis Stein Center for Law and Ethics. He is a former federal prosecutor in the Southern District of New York, where he served as Chief Appellate Attorney. Prior to that, he served as a law clerk to Supreme Court Justice Thurgood Marshall and Second Circuit Court Judge James L. Oakes. He is a council member and past chair of the ABA Criminal Justice Section, serves on the Multistate Professional Bar Examination drafting committee, and is a member and past chair of the NY State Bar Association's Committee on Professional Ethics. Professor Green is the author of many law review articles and books, and his latest, which he co-authored, isProfessional Responsibility: A Contemporary Approach.
Professor Rebecca Roiphe is a professor at New York Law School (NYLS) where she teaches courses on criminal procedure, ethics in criminal practice, and American legal history. Prior to joining the NYLS faculty, she taught for two years at Fordham Law. Professor Roiphe has had diverse experiences in both public and private sectors. After law school, she was a law clerk for First Circuit Court Judge Bruce Selya and served as a Golieb Fellow at New York University School of Law. She then worked as an associate at Wilmer, Cutler & Pickering LLP, specializing in white-collar criminal defense, while obtaining her Ph.D. in American history. She is also a former Assistant District Attorney in Manhattan where she prosecuted money laundering, securities fraud, and corporate crime.
