Monday, January 27, 2020

Impeachment Trial and Legal Ethics: Cipollone Should Be a Witness, Not a Trump Lawyer

Impeachment Trial and Legal Ethics: Cipollone Should Be a Witness, Not a Trump Lawyer
by Stephen Gillers [NY Law School]

Pat A. Cipollone, White House Counsel, participated in the events leading up to the impeachment of Donald J. Trump. That makes him a witness, whom the House managers might want to call to testify. But Cipollone is also heading the Trump defense. A legal ethics rule – the “advocate-witness rule” — says that when a lawyer should be a witness at trial, she cannot also be an advocate in the courtroom. The Senate chamber is not, of course, an ordinary courtroom, but that should make no difference. The goal is the same – to get the facts and find the truth.

Citing the advocate-witness rule and abundant legal authority, the House managers wrote to Cipollone on January 21 demanding that “at a minimum, you must disclose all facts and information as to which you have first-hand knowledge that will be at issue in connection with evidence you present or arguments you make in your role as the President’s legal advocate so that the Senate and Chief Justice can be apprised of any potential ethical issues, conflicts, or biases.” The House managers are right.

The advocate-witness rule tells us that it is more important for a lawyer with first-hand information about the events on trial to testify than to work as an advocate. That will mean that a client will not be able to get the lawyer he wants to represent him in court. But when the client’s interests and the court’s interest clash in this way, the rule says quite clearly that the court wins.

It doesn’t matter whether the lawyer’s testimony would help the client or the client’s opponent. In either event, the court’s interest in the testimony will prevail over the client’s wish to hire the lawyer. And especially if the testimony could help the opponent, the rule prevents the client from blocking it through the expedient of hiring the lawyer. The rule has exceptions but none applies here.

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