FILE – Jeffrey Epstein appears in court in West Palm Beach, Fla., July 30, 2008. The Associated Press has obtained more than 4,000 pages of documents related to Jeffrey Epstein’s jail suicide from the federal Bureau of Prisons under the Freedom of Information Act. (Uma Sanghvi/The Palm Beach Post via AP)
Often, depending on the nature of the case, a client’s criminal lawyer will understandably become his only friend in all the world. Some criminal charges are so disturbing that the client’s friends and family will reflexively abandon him based simply on the disturbing nature of the allegation.
Possibly only his lawyer will stick by him — if, indeed, predicated on their unique professional relationship that essentially requires that the attorney not judge the client or his conduct at least while the case pends — if only to effectively, indeed zealously, represent the client. Clients who feel they are being judged by their lawyers reflexively often seek other counsel.
Yes, as it must be acknowledged, many criminal clients are often figures who possess incredibly engaging character traits. Especially in past years, some criminal lawyers were frequently drawn to them — particularly la cosa nostra members who had broad public personas — beyond their role as their attorneys. Their “seductiveness” — a word that best captures it — would cause these lawyers to dine and entertain with them in oddly surprising numbers.
Perhaps that still occurs in some places. And we have certainly seen it with Jeffrey Epstein, often for different reasons. Still, clear as it can be, these mafia lawyers were toddlers compared to what we’ve seen with Epstein. And perhaps in fairness to them, what seduced them wasn’t a character flaw at all, but simply a desire to obtain or maintain “the family business.”
Looking at it from the outside, one might often wonder if — not meaning here to be judgmental — a character flaw might be present in these attorneys that might encourage them, beyond the working day or trial experience, to so connect with their clients with whom they typically have nothing really in common. Indeed, why would they want to relate personally to individuals whom society so broadly condemns — men you wouldn’t want your children to ever know or be exposed to? That is, at least unless the client cleverly insists, without the need to even say so, on a personal relationship with the lawyer in order to hold his trust – and his business (“keep your friends close”).
Epstein was hardly a mafia figure and he didn’t seem to insist on the personal attachment of those who seemed to counsel him. Given the nature of his relationships across society he was actually anything but that. Whether all of those who have now been publicly damaged by their connection to him actually knew what he was truly about with these many young women remains unclear — from President Donald Trump on down. But a large majority of them surely had some warranted level of suspicion, given that he was quite publicly convicted at some point along the continuum. Indeed, relatively early on.
But we are focusing solely on his lawyers — whether they actually represented him on his criminal matters involving these young women — who gave him support regarding those legal problems as exhibited in their now-public emails, or actually represented him on his other many legal projects (and they were clearly considerable). But if you represented or somehow assisted him in any way regarding his wrongdoing with these girls or young woman — and accordingly knew precisely “who” he really was — one expects that you should have decided early on to create a firewall of sorts from the rest of your life. In so many instances there doesn’t seem to have been such a decision.
To be clear, these lawyers weren’t really offering emotional support — it was more a suck-up kind of support, lest Epstein conclude that they hadn’t been there for him when they later needed something in their transactional relationship. Indeed, any lawyer who was giving Epstein counsel of any kind surely knew what he was up to — no matter how much his or her publicist today might choose to articulate differently.
There will be no names here of anyone including those who have already suffered in the media, rightly or wrongly. That’s not the purpose of this essay. The reader can figure those individuals out for herself. The purpose here is perhaps to provide worthwhile advice for younger lawyers — it will often, but not always, be criminal lawyers — who are retained by clients seen as reprobates that one wants to isolate from, except in the extremely limited professional acquaintance required between them.
Notably, in recent years, many litigators who have not traditionally been considered “white collar criminal lawyers” now characterize themselves as such. Perhaps they do so simply because it makes them come across as more interesting individuals. And oftentimes, if they do indeed participate in criminal defense on behalf of certain clients whose criminality is hardly “white collar” at all, they rely on the fact that the client’s business or profession is white-collar — even if his criminal conduct is simply beyond the pale, unacceptable in a free society. My late former colleague who successfully represented the legendary Claus Von Bulow for twice attempting to murder his wife, referred to him as a “white-collar defendant,” as if that alone might cut it. By the way, lawyers know pretty early on, the presumption of innocence notwithstanding, that the client has not been wrongly accused (whether or not they find it productive to tell that to the client).
Of course, any criminal client warrants the intense commitment of his lawyer. But he doesn’t necessarily warrant the friendship that the client might also seek in his difficult hour. The Epstein case and the scandal of seduction arising from it makes it extremely hard to understand why so many of those who connected to him did so — even though they truly knew that he had already pleaded guilty to soliciting prostitution from young girls. Did they justify their relationships with him because they thought he was “misunderstood”? Did they think he was victimized by an unjust prosecution, notwithstanding the level of legal talent at his side? Or did they believe that he pleaded guilty, notwithstanding his innocence, essentially to put his past behind, cut his losses and spare further turmoil for those close to him?
It is one thing, of course, to give a friend the benefit of the doubt when he is accused or even convicted of criminality. It’s quite another to throw caution to the wind on behalf of a “friend” when the precise purpose of the toss is to gain the benefit of what the “friend” has to offer you — in spades, as seems to have been the case with Epstein. It seems so obvious that that is precisely what occurred in Epstein’s case, particularly given the conduct of the lawyers who have now been exposed as having been willing to basically ignore what Epstein was really all about.
Clearly, Epstein’s crime wasn’t insider trading, or foreign corrupt practices, or Medicaid fraud, offensive as they too may be to society. No, Epstein uniquely violated the most sacred of what society holds dear. And even though many publicly identified intimates (including lawyers) saw him as warranting an unyielding relationship with them, notwithstanding what only became apparent to the rest of the world with the release of all of that shamefulness that existed secretly for years on his servers.
Shouldn’t lawyers have shown better judgment? This essay, again, is not intended to undermine the critical relationship between a lawyer and his client, particularly when the attorney represents a client on a criminal matter requiring unyielding commitment for effective representation. We see, though, in Epstein, a willingness on the part of many uncommonly qualified lawyers to simply overlook what was pristine in the name of “maybe this guy can do something for me.” Businessmen willing to engage with him notwithstanding what they had heard is frankly understandable on one level (as long as they weren’t directly exposed in any way to Epstein’s totally dark side).
A lawyer, especially a criminal lawyer who often must deal with alarming conduct, unequivocally needs to represent his client zealously. One wonders, though, if John Adams would have been socializing and fraternizing in the year 1770 with the dreadfully unpopular Boston Massacre defendants he bravely chose to represent as a matter of principle. And, given the Epstein lesson, if you’re a lawyer, but especially not the criminal lawyer for a client with a horrendous criminal case, you really need to consider the nature of your relationship with your client. Just follow the media nowadays and see what Epstein has wrought for individuals who have literally been captains of the legal profession.
And last, we all email or text some stupid things that somehow become etched in stone or even forwarded. Do yourself this favor: wait two minutes before you press “send” when communicating with certain individuals. We know who they are (or certainly should).
Joel Cohen, a former state and federal prosecutor, practices white collar criminal defense law as Of Counsel to Ruskin Moscou & Faltischek PC. He is the author of “Blindfolds Off: Judges on How They Decide” (ABA Publishing, 2014) and is an adjunct professor at both Fordham University School of Law and Cardozo School of Law
→ Continue reading at amNY
