It couldn’t be just Michael and me

Jonas, W. James, III



Ode to Michael Cohen by JONAS Michael Cohen, I know your gig You're not a crook, you're not a pig A mobster? No You're just a pup But guilty of Trump sucking up Lawyers do it Their conscience blind With clients rich They suck big time So you did stuff To impress Trump Your bills went through Without a bump Now you're busted Such a good guy Blaming clients That is a lie You crave their acclaim And on-going fees You'd do anything For clients to please Let us be clear Not client need Prompts what you do It is your greed It Couldn't Be Just Michael And Me by JONAS Michael Cohen, labeled as Trump's fixer, is not a unique case in attorney client dynamics or in his rationale for action. However, the Michael Cohen melodrama is an opportunity for all attorneys to look in the mirror. When I look at Michael Cohen, I see myself a fixer for high value clients. Fixers never lose a client. Fixers are never asked to trim their their bills. Fixers are always self-appointed and have more to lose by not being fixers than the client that is purportedly requesting "the fix." Yes, my mirror had Michael Cohen's likeness, and I had certainty our kinship was not special. It couldn't be just Michael and Me. Over twenty years ago, my legal practice featured representing the largest or second largest corporate entity in many major policy arenas such as education, financial services, criminal justice, and healthcare with the status as the company's exclusive representative in my home state. Some of these clients were mine because my political network included the highest levels of executive branch leadership; others were with me because of the combination of platinum politics and substantive expertise. In every case, the representation was controlled by an executive of substantial wealth and status whose favor was constantly being sought by competing law firms. While always showing confidence, I was like every "rainmaker" I ever met, constantly considering activities that would further demonstrate to these big shots how I was thinking about and protecting their interest. The mindset is as long as I was thought of in this light, my professional relationship (i.e., the ability to bill every month) was secure. Just doing what you are specifically asked to do is simply not the relationship these clients have with their outside attorneys. Further, the previous years had validated for me that the few lawyers "stupid enough" to only do what they were asked were, in fact, the former lead outside attorneys for parts of my mid-90s portfolio. At that moment in my career, these high value clients brought on a simultaneous sense of omnipotence and impotence. In so many ways, I was certain I knew (or thought I knew) what was best for the client, yet my vulnerability to losing that same client, through the mere whim of a rich man, was an equally strong certainty. Such duality inspired me to decisive actions on behalf of these valued patrons without seeking their approval which I was certain would be perfunctory. Starting in law school, knowing the limits on what client requests should and should not be honored is well understood and studied. However, I have never seen an examination of bright lines for unilateral action on behalf of a client. The limits, in hind sight, are always obvious, yet it appears we, collectively, ignore this more likely scenario when lawyers over step on behalf of a client. When where and how to "help" a client is more often identified by the lawyer first; the over confident, typical, lawyer is certain his act will advance the client, and since the act is marginal or clearly out of bounds, getting clear authorization might confuse the client or cause them to say "no" (thus destroying a moment to demonstrate indispensability) and will not give the lawyer clean hands anyway. So this, far too average, lawyer takes the action for self promoting reasons, without any client visibility. The aforementioned decision process is completed in less than a second and never becomes an issue until the FBI shows up. My Michael Cohen moment came with a private prison client where a retiring public official ("Andy") was certain to be an ideal consultant for this client, in the near term, and desperately coveted by the client s vicious competitors. Andy's value to the client was obvious, a scope of work outside of his past official duties (and still of high client value) easily defined, and the initial fee was less/no more than a Stormy Daniels settlement. A Stormy Daniels settlement amount can vary from client to client but is as easy and instantaneous to discern by me as it was to Cohen. Such an amount is an expense worthwhile whether billed or unbilled (directly) to the client, that, if they knew about it, the client would value. My unilateral choices were genius, until the Federal Bureau of Investigation called to discuss Andy. While Andy's attention getting conduct was beyond his dealings with me, the investigation required me to disclose who directed me to hire Andy. Different from Michael Cohen, the FBI did not seem to care about my client's involvement and my answer did not impact the length or comfort of my time in prison. Had the FBI or any other investigative body wanted to create a narrative of a greedy prison company sneaking about buying influence, the "facts" could have been twisted in that direction, but that would have been a lie. What had happened was an over-confident self empowered outside counsel (me) took actions I thought would be of value to a client I was desperate to keep and impress. In my case, the result was the same, as I would suggest is the case in many that never make the New York Times, the client was Mortified (officially), Horrified (officially), and I was contrite (for real). The client relationship, a tad damaged, continued for another decade until I resigned from the representation for unrelated business reasons. Michael Cohen's Trump relationship is not an unknown dynamic but to assume that the client is the active force pressing for beyond-the-pale action ignores how active the attorney is in the role of Court Pleaser. Attorneys actively trying to gain favor may not be grist sought by prosecutors, but it is a reality worthy of red paint by the legal profession. Michael Cohen's actions are a reminder that we do not always know what is best and never can allow ego to dictate what we "fix." Cohen may or may not, believably, establish that he was ''told'' to lie. If true, the profession knows how to avoid that type of ethical failure. The greater challenge is helping the yet to be identified Michael Cohens who remain certain that they know what the client wants them to do. It couldn't be just Michael and me. ABOUT THE AUTHOR - Jonas, a former member of the American Bar Association, practiced law in Texas and Washington, D.C. from 1987-2017. He is currently incarcerated on a public corruption conviction (appeal pending) unrelated to the events in this article.

Author: Jonas, W. James, III

Author Location: West Virginia

Date: February 19, 2019

Genre: Essay

Extent: 2 pages

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