WASHINGTON ― Marc Kasowitz, the personal attorney representing President Donald Trump in the Russia probe, is unlikely to be disciplined for a series of threatening emails sent to a stranger on Wednesday night, experts say.
Kasowitz sent the profanity-filled emails, published by ProPublica on Thursday, after a stranger sent him an email saying he should resign. Kasowitz responded with “F*ck you,” before sending several other disparaging messages.
One reads: “I’m on you now. You are fucking with me now Let’s see who you are Watch your back , bitch.” Another email says: “I already know where you live, I’m on you. You might as well call me. You will see me. I promise. Bro.”
Kasowitz issued an apology for the emails on Thursday.
Despite the concerning language used by an attorney representing the president of the United States, legal experts doubt Kasowitz will face any discipline from the New York Bar Association.
“The insults and threats strike me as reprehensible, but not all reprehensible behavior by lawyers involves legal ethics violations,” said William Simon, a law professor at Columbia University. “Legal ethics rules forbid dishonest and lawless behavior, but it’s not clear those lines are crossed in the behavior reported in the story ... I see this more as a matter of ordinary morality.”
The New York bar told HuffPost on July 17 that disciplining attorneys is not their forte.
“Disciplining of attorneys is handled by the court system in New York ― not the New York State Bar Association,” said Lise Bang-Jensen, a spokeswoman for the group.
A spokesman for Kasowitz did not return a request for comment.
The New York Rules of Professional Conduct include provisions barring attorneys from engaging “in illegal conduct that adversely reflects on the lawyer’s honesty, trustworthiness or fitness as a lawyer” or anything “that is prejudicial to the administration of justice.”
But NY Rule 8.4 (h) ― a catch-all measure most states do not have ― forbids an attorney from engaging in “conduct that reflects adversely on the lawyer’s fitness as a lawyer.”
Kasowitz’s actions could conceivably fit into this category, says Mary Helen McNeal, a law professor at Syracuse University who teaches courses on professional responsibility.
“However, often lawyers are not disciplined unless there’s a pattern of conduct or the conduct rises to a serious level ― even if there’s a technical violation of the law,” she told HuffPost. “I can’t imagine he would be disciplined for that.”
W. Bradley Wendel, a law professor who teaches legal ethics at Cornell University, pointed to Rule 4.4 (a), which says an attorney’s responsibility to prioritize their client’s needs doesn’t mean they’re allowed to “embarrass or harm a third person.”
“One has a legal right to be free from tortious conduct, such as defamation. But these emails aren’t defamatory, and there’s not really a general right to be free from being told to fuck off, particularly in electronic communications,” he said.
McNeal noted that the rules tend to focus on attorney-client scenarios.
“This was not a client representation matter,” she said. “The gentleman who sent the email wasn’t a client, so there are many rules that flat-out wouldn’t apply in this situation.”
Usually attorneys are disciplined for offenses that fall outside of the law ― such as perjury, theft, murder, drug crimes or driving while intoxicated. If the emails happened to rise to the level of being illegal, then Kasowitz could be open to discipline.
“A disciplinary committee could properly find that Kasowitz’s emails violate this rule,” Stephen Gillers, a legal ethics professor at New York University, told HuffPost in an email. “It could do so on its own, without a complaint, or in response to a complaint by any member of the public.”
“However, in the exercise of prosecutorial discretion, in light of Kasowitz’s quick apology, it is not likely to seek to discipline him,” Gillers continued. “In making that decision, it will consider whether he has been the subject of prior discipline.”
Kasowitz has no public disciplinary history as a lawyer, according to a report by The American Lawyer. But at least two ethics complaints were filed against Kasowitz in June alleging that he may have inappropriately counseled White House staffers while representing the president, which raises concerns about a conflict of interest.
Attorneys who have faced prior discipline may be subject to more serious consequences depending on their records. This includes a private admonition or a public censure.
But Gillers says the Kasowitz emails wouldn’t rise to the level of disbarment or even suspension.
The New York bar committee could issue a confidential Letter of Advisement. The letter is not a formal disciplinary measure, but a warning to the attorney that they “engaged in conduct requiring comment.”
Gillers says the letter translates to: “Don’t do it again or else.”
More than anything, experts agreed the emails reflect poor judgement.
“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.
“I’m not sure the disciplinary process is the right vehicle for dealing with this sort of thing. Lawyers are aggressive, or lose it, with some frequency,” he continued. “The recipient of these emails doesn’t seem to be in any real danger. This doesn’t seem like a case for a violation.”
This story has been updated to include a comment from the New York State Bar Association.
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