2

A recent NPR article revealed that in making a threat of a lawsuit, Michael Cohen materially misrepresented the law in claiming that one cannot rape their spouse. This strikes me, as a layperson, as rather unethical behavior.

Is it grounds for action from the bar association that he's licensed under, whether that be disbarment, censure, or something else?

3

Cohen has ethical problems, but this is probably pretty far down the list.

If he were lying about the law, though, that could be treated as a violation of Rule 4.1 of the New York Rules of Professional Conduct:

In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person.

It could also be a violation of Rule 8.4:

A lawyer or law firm shall not ... (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

Although these would be violations of his ethical obligations, they probably do not rise to the level of seriousness that would result in any meaningful punishment. Disbarment would be extremely unlikely, though a censure is conceivable. If someone reported the offense, I would actually expect that the state would decline to investigate at all.

Of course, all of this assumes that he was deliberately lying about the state of the law, which I think overestimates his competence. More likely, he's just an idiot and didn't know that he was wrong.

Importantly, being wrong about the law isn't unethical; it's a presumption at the foundation of our adversarial justice system.

  • Agreed. If you make the likely assumption that Cohen was mistaken about a relatively recent change in the law, and not knowingly incorrect, then it goes to his ethical duty of competence and not to his duty of truthfulness to third parties. But the duty of competence is owed only to one's client and not to an opposing party. – ohwilleke Jun 1 '18 at 17:41
  • @ohwilleke is it a relatively recent change in the law? Would it make a difference whether the change was before or after he was admitted to the bar (in 1992)? – phoog Jun 1 '18 at 18:38

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