Now that former Trump Organization accountant Allen Weisselberg has pleaded guilty to perjury, the lawyers who defended Donald Trump at his bank fraud trial have found themselves in a precarious position: open to accusations that they violated professional ethics for remaining silent while their witness lied in court.
Attorneys put their bar licenses at risk if they sit idly by while they know that their witnesses present false testimony under oath. As such, Weisselberg’s recent confession presents a unique and personal threat to Trump’s hired legal guns, who have already gained an unseemly reputation over their willingness to defend their client’s hate-fueled attacks on public officials, attack judges on his behalf, and play delay games by pitting court calendars against each other.
“The lawyers could face bar discipline if they knew that this testimony was false and did nothing,” said Rebecca Roiphe, who teaches at New York Law School. “The state bar attorney grievance committee could initiate its own investigation or the trial judge could make a referral.”
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The fallout from Weisselberg’s plea deal on Monday could be severe for Trump attorneys Alina Habba, Clifford S. Robert, and their colleagues. It would also be a fitting follow-up to the stark warnings that Justice Arthur F. Engoron issued to Trump’s lawyers last month.
While presiding over the three-month trial about Trump’s incessant lies to banks last year, Engoron considered Weisselberg an untrustworthy witness who couldn’t accurately recall his role as the company’s former chief financial officer. But on Feb. 1, when The New York Times reported that Weisselberg was secretly negotiating a perjury plea deal with the Manhattan District Attorney, Engoron immediately demanded that Trump’s lawyers explain if their witness was “now changing his tune, and whether he is admitting he lied under oath in my courtroom at this trial.”
Notably, his Feb. 5 email pressed them to “submit, as officers of the court, a letter to me detailing anything you know about this that would not violate any of your professional ethics or obligations.”
The choice of words was anything but ordinary.
New York’s rules of professional conduct command that “a lawyer shall not… knowingly use perjured testimony or false evidence.” But it also goes further, ordering that a lawyer who knows their client has “engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.”
On Monday, Weisselberg admitted to lying twice in depositions with the New York Attorney General’s investigators and a third time in Engoron’s courtroom during the trial on Oct. 10—committing a crime when he tried to disavow his role in helping Trump triple the size of his three-floor apartment at Trump Tower on financial papers.
Trump’s lawyers had a duty to take “corrective action” if they knew Weisselberg lied, according to New York University law school professor Stephen Gillers.
“Perjury would qualify as ‘criminal or fraudulent conduct,’” he told The Daily Beast.
The question, then, is whether Trump’s lawyers knew Weisselberg was lying when he did it.
“It's exceedingly rare for the lawyer to actually know that what the client or witness said under oath was a lie,” said Bruce Green, who teaches legal ethics and professional responsibility at Fordham University’s law school.
The answer might be found in the overlapping evidence cited by the Manhattan District Attorney against Weisselberg and the colossal $464 million judgment Engoron issued last month that ended the bank fraud case.
In documents released Monday, the DA’s office explained how it relied on internal Trump Organization emails to prove that Weisselberg was lying. Weisselberg claimed under oath that he “didn't find out about the error until the Forbes article came out” in May 2017 when Forbes publicly exposed the way Trump faked the size of his triplex to inflate his assets by $200 million. In reality, however, Weisselberg was part of an internal discussion months earlier and had personally directed an employee to “leave it alone” and not challenge Forbes before the article was published.
However, those same electronic communications were cited as evidence in Engoron’s 92-page order against Trump and Weisselberg—meaning they were part of discovery in the bank fraud case. Those documents would have been reviewed by Trump’s legal team during the case.
“They should have known,” said Daniel L. Feldman, who teaches ethics at the City University of New York’s John Jay College of Criminal Justice.
“There are two alternatives: Either they did not engage in due diligence—itself a violation of lawyers’ ethics—or they knew. What are the alternatives? They didn’t read the documents? I mean, come on. They certainly should have known,” he said.
At this point, Trump’s lawyers could get a taste of their own medicine. During the bank fraud trial, they fueled their client’s conspiracy theories about what he publicly called a “sham” case and “corrupt” judge, which in turn drew a flood of ethics complaints against Justice Engoron and his law clerk, attorney Allison Greenfield.
Now, several people are positioned to report Trump’s lawyers to the grievance committee at New York’s First Judicial Department, the appellate court that oversees Manhattan trial courts. Legal scholars told The Daily Beast that Engoron, his law clerk, the DA, the AG, the still-unnamed judge who will oversee Weisselberg’s sentencing in April, or any member of the public could file a complaint against Trump’s lawyers to the professional disciplinarians.
One scholar pointed out that this was the same tactic used against Rudy Giuliani, whose bar license was revoked in New York and D.C. after several public interest groups filed complaints against him.
But just as New York has become the definitive battleground against Trump—the state where his finances and freedom have come under threat from the recently concluded civil trial and an upcoming criminal trial later this month—it may also be one of the worst places for his lawyers to find themselves in this position.
“In a lawyer disciplinary case in New York, the standard of proof is lower than most jurisdictions. It’s just the preponderance of the evidence,” said Hal R. Lieberman, who once led the First Department’s disciplinary committee as its chief counsel and co-wrote a book about the topic.
That means the lawyers in charge of investigating this don’t have to prove any professional misconduct beyond a reasonable doubt. Instead, they’d abide by the lower standard used in civil cases: If they’re 51 percent sure something is wrong, they’ve got a case.
“The rules of professional conduct in New York make very clear that a lawyer has a duty to disclose to a court whenever a client or witness is committing a perjury on the stand. But the standard is actual knowledge. The lawyer can’t just be guessing,” Lieberman stressed.
For example, a divorce lawyer submitting a husband’s financial statements to a matrimonial court can’t knowingly omit his offshore bank account where he’s been stashing cash. For that same reason, Trump’s lawyers had to abide by a simple rule: If you know something, say something.
“If a lawyer comes to learn that a client is committing perjury, the lawyer's first obligation is to come to the client and talk to them. ‘You said X then Y. Which is it? We may have to go back and correct your testimony.’ The lawyer has to make an effort to talk to the client first. If the lawyer comes to believe there’s perjury, then the lawyer has a duty to not only fire the client, but disclose under the rules,” Liberman said.
It wasn’t always this way. Some 50 years ago, the legal profession underwent a paradigm shift that redefined their role. Judges started clamping down on lawyers who took their advocacy role so far that they’d stand by while their client would lie. A turning point came in 1986, when the Supreme Court considered a case involving a man who stabbed a drug dealer to death in Iowa but claimed he did it in self-defense. When the man was sentenced to prison, he blamed his lawyer for advising him not to change his story on the eve of trial by claiming he’d seen an actual gun in the other guy’s hand. The Supreme Court ultimately decided that the man’s Sixth Amendment rights weren’t violated when his lawyer refused to go along with the lie, because a defendant doesn’t have the right to commit perjury.
“In the old days, there used to be this idea that the attorney's only obligation is to represent the client. Over the years, that has changed. As the attorney is an officer of the court, the attorney also has an obligation to the public,” Feldman said.
In that lens, Engoron’s warning last month that Trump’s lawyers provide answers “as officers of the court” takes on new meaning. So does their initial response to Engoron’s email, in which they refused to provide answers.
Robert, who relied on Weisselberg’s testimony and represented Trump sons Don Jr. and Eric, blasted the judge for even poking around.
“Defendants’ counsel are well aware of their ethical responsibilities pursuant to the New York Rules of Professional Conduct,” he shot back in an email two days later. “Consistent with their ethical responsibilities, defendants’ counsel will not make any statements concerning rumors of any kind involving Mr. Weisselberg.”
Meanwhile, Habba—who represented Weisselberg—drew up her guard.
“In an abundance of caution, I have conferred with my ethics counsel and have been advised that I am constrained by my professional ethical obligations from providing any further detail. No adverse inference should be drawn from my inability to respond,” she wrote back on Feb. 7.
At the time, she asked that Engoron drop the matter entirely, saying it shouldn’t affect the judge’s perception of Weisselberg’s credibility as a witness “nor should it be the subject of further inquiry by this court,” given that the Times report about his plea deal was “unsubstantiated.”
Unfortunately for Habba, the reports about Weisselberg’s perjury are now substantiated.
Habba did not respond to a request for comment on Tuesday afternoon.
Even if Trump’s lawyers could successfully defend themselves from professional repercussions, just having to put up a defense could be a big problem for Trump and his attorneys.
The former president’s legal calendar is already full of court dates and deadlines, and Trump’s lawyers—many of whom are working on multiple cases for him—wouldn’t have much time to deal with these complaints without it affecting their own schedules and ability to defend themselves.
