Time and time again, President Trump and his associates have talked themselves into legal trouble. Trump’s splenetic tweets about foreigners were quoted in court opinions blocking his immigration initiatives. When Trump proclaimed he had no idea that his attorney Michael Cohen had paid adult-film actress Stormy Daniels for her silence, her lawyers cheered — the president had just handed them a very plausible argument that the nondisclosure agreement she signed with Cohen was unenforceable. Like his client, Cohen has caused problems for himself, careening from one ill-advised public outburst to anotherabout Daniels, derailing his efforts to enforce the nondisclosure agreement and probably assisting the federal criminal investigation that culminated in searches of his home, office and hotel room this month. During special counsel Robert Mueller’s investigation, former Trump advisers Michael Flynn and George Papadopoulos have pleaded guilty to lying to the FBI, and indictments against his former campaign manager Paul Manafort and Manafort’s associate Richard Gates include similar charges. These are all self-inflicted wounds; any good attorney would advise against them.
When wealthy and powerful people make such bad decisions, it’s tempting to assume they must have gotten terrible legal advice. But that’s rarely true. Yes, for most people, there is a crisis of good lawyering in America: Quality legal advice is too expensive. Our public defenders are overworked and underfunded. Few Americans can afford to litigate a civil dispute at all, let alone do so aggressively with elite lawyers. But when the rich and powerful — the self-styled “masters of the universe” — make legally disastrous decisions, it’s usually because they’ve either ignored their attorneys or self-indulgently chosen the wrong lawyers for the job.
The very qualities that lead people to wealth, power and fame can make them very poor consumers of legal advice; hubris is fatal to an effective attorney-client relationship. Trump prizes “loyalty” very highly, as many powerful people do. But real loyalty from an attorney doesn’t involve fawning over a client, refraining from criticism, or congratulating them for views both right and wrong. A good lawyer’s loyalty lies in being ready to give plain-spoken advice that will get you fired if your client’s in the wrong mood. An effective advocate’s loyalty isn’t about saying “Good idea” or “You’re right,” it’s about warning “Shut up” and “No, you shouldn’t do that” and “Yes, I understand you want to do that, but here’s why it’s a terrible idea.” Real loyalty looks like Cordelia, refusing to flatter King Lear at great cost, not like her sisters, praising him effusively to get more land. Continue