Absent reform, ethical lapses among all the president’s lawyers will be cyclical

The post-Watergate era marked the first genuine reckoning the legal profession has faced in modern history, and nearly sixty years removed from Nixon’s resignation, we will hopefully be seeing a second.

A number, perhaps even most of the named co-conspirators in the federal indictments of former President Donald Trump, are attorneys. Even more appear to have made it to the lifeboats as unnamed co-conspirators. It’s safe to assume the absence of names like L. Lin Wood, now forced into “retirement” thanks to his leading role in Trump’s attempts to overturn the election, means these bar-certified legal professionals safely ironed out deals to gain a pass for their involvement.

While the headlines are understandably focusing on Trump himself, the legal community should be looking to its own. We sit in the aftermath of a series of abuses by our so-called colleagues that make the charges against Nixon’s legal advisors look like loitering.

We took swift and nonpartisan action after Watergate to ensure that our profession would be better, and we must do so again. The more well-known post-Watergate reforms were designed to check corruption in the legislature and abuses of power by the executive branch, but the most significant ones were in the judicial realm of government and the legal world generally. The American Bar Association decided in the scandal’s immediate aftermath to reinforce and refine their Model Rules of Professional Conduct and clarify confidentiality rules.

Most of the reforms in the legislative and executive branches of government came and went. Some remain as a shadow of their former selves. But the legal reforms endured, and by now have directed generations of attorneys towards a better, more ethical course. But don’t take it from me - take it from John Dean, one of the White House counsels snagged in the Watergate scandal.

“There were two dozen post-Watergate reforms involving things like campaign finance, special prosecutions and what not,” Dean said in a 2014 speaking engagement to the American Bar Association. “Those are all gone now. But the professional bar has insisted that ethics requirements remain at the forefront of the profession.”

Dean, who plead guilty to his role in the coverup in exchange for coming forward as a key witness to the prosecution, often described Watergate in such speaking engagements as a “lawyers’ scandal,” noting that 28 lawyers including himself had been ensnared by it. What might have otherwise gone down as a bungled burglary snowballed into a full-blown government crisis under the full guidance of a team of highly trained attorneys regarded as thought leaders of their profession.

These lawyers were no fools; they chose their words very carefully, within the bounds of what Nixon would want to hear while skirting as close to the legally provable truth as possible. They stepped out of rooms when they thought they might hear something they shouldn’t, and their clients chose their comments and questions carefully in turn.

Dean concluded that 2014 speech by noting that the moral of Watergate seems to have stuck with lawyers, and while it’s likely impossible to trace the number of lawyers who might have broken bad without those formative and routine lessons about ethics, I agree that’s the case. But even with that optimistic outlook, Dean was a realist enough to acknowledge there was nothing to stop this from happening again.

“Technology changes,” Dean said, “but I have not noticed significant changes in human nature. What happened then happens just as easily today.”

He wasn’t wrong. Before Jan. 6 - years before the notion of Trump as a serious presidential contender was anything beyond a punchline - Dean astutely observed that it would take no time at all for another Watergate to unfold “thanks to human nature.” Human nature and base instinct can motivate legal professionals to listen to the voice deep in their mind that’s telling them what they want to hear, that whatever wrong they’re doing is justified.

Sadly, whatever reforms or rule changes are to come are years or even decades away; we’re not even at a point where we can be sure what lessons are to be gleaned. When I began penning this column around the Jan. 6th Committee’s hearings, I reached out to several colleagues in law – fellow retired and practicing judges and three law school deans – who struggled as I did to even suggest a remedy.

Stricter legal ethics tests in law school, some proposed, but as a young lawyer-to-be myself I saw that tactic implemented in real time post-Watergate, when we students of the California bar were suddenly wrangling with special exams, essays, and other ethic-minded hurdles necessary to obtain and maintain their Juris Doctor. I felt it personally helped me, but for lawyers who are willing to be unethical, it’s even more important to learn where the boundaries are. That way you’ll know how to work around them.

At the very least, I believe we could stand to expedite the process for disbarment when allegations of this magnitude come to light, reducing them to a matter of weeks rather than months or years. The previously aforementioned Lin Wood was allowed to graciously “retire” ahead of his inevitable disbarment. The fact that these bad actors are able to say that they stepped away from their legal practice, rather than forced out of it, is a black mark on our profession.

Whatever form this reckoning takes, the discussion needs to start immediately. A note for The CATO Institute, The Rand Corporation, The Heritage Foundation and think tanks from across the political spectrum: this is where you should be stepping in.

With four federal indictments stacking and a legal team that’s either personally entangled or turned government witness, Trump seemingly had no problem finding attorneys to represent him in each state. Not that he should have to go without one, but with Trump’s strong intent to pursue the presidency in 2024 – a contest he could against all odds conceivably win – one hopes they’ve learned some lessons from Watergate, if not their immediate predecessors, and refrain from indulging Trump’s tendency towards the illegal.

Any professional reforms to come won’t likely change their minds, but they might prevent the next generation of would-be co-conspirators from providing legal guidance on any attempts to defy democracy. If we don’t act now, I don’t think we’ll have to wait another 60 years for a third reckoning.