When Ty Cobb joined President Trump’s legal team in July, Bloomberg News reported that he was “intended to be traffic cop, enforcer of discipline” on matters related to the ongoing investigation of Russian involvement in the 2016 election.
This week, some attorneys were left wondering if that discipline applies to professional ethics.
On Sunday, a New York Times reporter revealed he had overheard Cobb and Trump attorney John Dowd “casually and loudly” discussing the investigation and Cobb’s dispute with White House counsel Don McGahn while eating at a popular Washington, D.C. steakhouse. The reporter even snapped a picture of the two men in discussion.
— Kenneth P. Vogel (@kenvogel) September 18, 2017
In a news article afterwards, the paper reported that Cobb is locked in a dispute with White House Counsel Don McGahn about how much to cooperate with special prosecutor Robert Mueller, although Cobb said the two have been able to work out their differences “professionally.” The reporter sitting at the restaurant quoted Cobb suggesting a colleague may be a “McGahn spy” and referring to “a couple documents locked in a safe” that Cobb may not have access to.
Big Law Business spoke with several lawyers and ethics experts who called Cobb’s actions a clear misstep.
“In any case of a sensitive nature, that would be problematic,” said Renato Mariotti, a former federal prosecutor in Chicago who is now a partner at Thompson Coburn. “But when you’re talking about the most important criminal investigation of our lifetime, it becomes even more bizarre and hard to fathom why these attorneys thought this was a good idea.”
“I would label their behavior incompetent and unethical,” added Mariotti, who has become a frequent legal commentator on the Mueller investigation given his willingness to talk about a topic lawyers often shy away from.
Attempts to reach Cobb were unsuccessful, but we’ll update this post if we hear from him or his team.
Stephen Gillers, a professor who teaches ethics at NYU Law School, characterized the restaurant conversation as a mistake that could carry broader repercussions than bad press.
“Every new lawyer knows that lawyers must never discuss client matters where they can be overheard, including restaurants and elevators,” Gillers wrote to BLB in e-mail when asked what ethics questions were at stake in the steak restaurant incident. “In fact, the failure to take precautions to protect client confidences violates lawyer ethics rules and can lead to discipline.”
“I would call what they did a rookie’s mistake but that would be unfair to rookies,” Gillers added. “It is so obviously inappropriate.”
American Bar Association’s Rule 1.6 states that “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”
“In this case, it doesn’t look like they made reasonable efforts giving their own high profile and the high profile of their client,” said Robert J. Zafft, who teaches business ethics at Washington University in St. Louis and is counsel with Greensfelder, Hemker & Gale.
Zafft, who also leads CLE courses on ethics for the Missouri and Illinois bars, says he frequently asks his students an exam question about information shared with an in-house counsel at a noisy bar in Washington.
“The question is, were there proper efforts made to keep things confidential?”
In Cobb’s case, Zafft said “he blew it.”
“But it’s not as if he did something that other people don’t do, in terms of having lunch and talking about the matter,” added Zafft. “My first reaction is, there but for the grace of god goes virtually every lawyer I’ve ever met. I can’t think of a lawyer who hasn’t had a lunch or dinner meeting with a client or colleagues and discussed confidential matters.”
Even beyond the ethics violation, lawyers said Cobb’s disclosures might also be harmful to his client’s case.
Mariotti said his biggest takeaway has been the public news of dissension within President Trump’s legal team. According to the New York Times, the debate over how much to cooperate with special counsel Robert Mueller led to “an angry confrontation” last week at the White House.
“That should not exist in any legal team, and to the extent it exists, should never be revealed to the public,” he said. “A defense team should always present a unified front to the prosecutors.”
“It just suggests that the entire operation is not maintaining confidentiality,” said Mariotti.
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