"Careful what you email" has become a pretty important consideration in Washington lately, and not just for the politicians. This past week, Marc Kasowitz, President Trump's longtime personal attorney found himself in the spotlight over an email exchange with a critic. On the evening of July 13th, Mr. Kasowitz seems to have fallen victim to the temporary illusion that he was having a private conversation in a private place. He received an email with the blunt subject line "Resign Now," but otherwise it was a pretty civil message focusing on long-term interests of himself and his firm being served by choosing to no longer represent the President. Kasowitz's response? "F--- you." Then, a few minutes later, an onslaught of emails that served to unpack that suggestion: “I’m on you now. You are f‑‑‑ing with me now. Let’s see who you are. Watch your back, b-----,” and “Call me. Don’t be afraid, you piece of s‑‑‑,” and another message: “Stand up. If you don’t call, you’re just afraid.” And then later, “I already know where you live, I’m on you. You might as well call me. You will see me. I promise. Bro.”
Naturally, the emails went public. So the next morning saw a quick apology from Kasowitz. But, arguably, the damage had been done, not only clouding an attorney's reputation with the image of highly-unprofessional communications, but also adding to the public perception of turmoil within the President's legal team as unfavorable information continues to stack up, the outburst coming on the heels of Donald Trump Jr.'s release of emails detailing a campaign meeting to obtain Hillary-damaging information from the Russian government. For all attorneys, the incident provides a useful reminder: When there is any reasonable chance that it could be public, treat it as public. Yes, that goes in the "obvious" and "should go without saying" categories, but surely Kasowitz, considered one of the foremost New York powerhouse attorneys and mentioned for the post of U.S. Attorney General, is in the category of attorneys who should know better. One would think that judges would know better as well, but based on a recent Above the Law article, not all of them do. So it is a reminder that bears repeating: Guard your reputation, and if it could be public, then act as though it is public. This post looks at why this is true from three perspectives.
The Public View
A reputation should be an attorney's most prized possession. Marc Kasowitz, like his client Donald Trump, has a reputation for being a bit of a pit bull, so the emails may not necessarily change that reputation. Most attorneys, however, will spend their careers striving to build a reputation for considered judgement, restraint, and maturity. A hit to that reputation is never worth the momentary gratification of a response sent in anger. And even a pit bull can suffer in the public eye. As W. Bradley Wendel, a law professor who teaches legal ethics at Cornell University, notes, “These emails are abusive and nasty, and reveal Kasowitz to be either strategically aggressive, because that’s his lawyer persona and it generally serves him well, or out of control, tired (as he suggested in his apology), and coming apart a bit from the stress of representing Trump,” Wendel said.
The Bar View
Kasowitz's comments may or may not legally be considered a criminal threat. But lawyers aren't just supposed to follow the law, they're supposed to uphold a standard of professional responsibility. In New York, where Kasowitz practices, Rule 8.4 (h) notes that an attorney cannot engage in “conduct that reflects adversely on the lawyer’s fitness as a lawyer.” Observers, like Mr. Wendel cited above, doubt that Kasowitz will be disciplined, but if communications like that became a habit or if they translated into actions, it could be a different story. Bottom line, lawyers are better off trying to fulfill the highest standards of professional conduct that their bar envisions, even in what they take to be their private communications.
The Jury View
Jurors, of course, are instructed against searching for online information in cases, and are enjoined against looking up either parties or counsel. Still, it isn't unheard of for jurors to violate that instruction. In these modern times, some people will Google just about any and every new contact. They might feel that just looking up an attorney is 'safe' since it isn't looking up information on a case. And beyond the empaneled jury, there is also the future jury to worry about. If, like Kasowitz, you're being used as a bad example in news stories, that fact could become known to future jurors, including those who say they can be fair and 'set aside' prior information.
So the bottom line is to guard your reputation. What might have once been relegated to courthouse gossip can now race around the world instantly. If it could be public, treat it as public.