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December 18th, 2018

A Lawyer Falls on His Sword

Photo by Saul Loeb – Pool/Getty Images)

You don’t see me writing about criminal law here for good reason — it’s not what I do. But something happened during the sentencing hearing for General Michael Flynn today that deserves mention.

As many know, he was showing up to be sentenced for lying to the FBI about his contacts with Russians and with regard to statements he made about his involvement as an agent for Turkey. Given that he was Trump’s National Security Advisor, and he was compromised, this was obviously a big thing.

But during the sentencing, press reports were that Judge Emmet G. Sullivan was, shall, we say, a bit irritated. To say the least. He called Flynn’s conduct “a very serious offense” and said he was not hiding his “disgust” at what Mr. Flynn had done. At one point he asked prosecutors if they had considered charging him with treason.

A small part of that anger may have been due to the fact that, prior to the sentence, Flynn’s lawyers suggested he might  have been set up, or duped, by the FBI.

And this is the reason that I write on this subject — because it has nothing to do with criminal law but about the relationship between attorneys and clients in general:

At the hearing, Judge Sullivan brought the subject up, making sure that Flynn distanced himself from the comments of his lawyers and fully acknowledged that he knew he wasn’t supposed to be lying to the FBI, even if they didn’t tell him he was the subject of an investigation.

Who’s idea was it to vacillate a bit on the reason Flynn got busted? to suggest that, perhaps, he was somehow entrapped? Lawyer or client? Beats me. But at the hearing it didn’t matter to the lawyer.

At the hearing, to spare his client, Flynn attorney Rob Kelner said his client shouldn’t be punished for the conduct of his attorneys. He fell on his sword; he threw himself under the bus; he bit the bullet. No matter the metaphor you choose, the lawyer owned the problem and told the court the bucks stops with him.

Because that’s what a good lawyer is supposed to do.

8 thoughts on “A Lawyer Falls on His Sword

  1. you are correct that is what a good lawyer should do-but then on the other hand -good lawyers shouldn’t put such untrue suggestions in their filings in the first place….the idea that Flynn didn’t know it was a crime to lie to the FBI and that he needed a warning not to– is preposterous

  2. Good catch, Eric. I’ve been hearing about this courtroom scene literally all afternoon, and no mention of this on the news. Now, how many other lawyers in the Trumpian sphere will be as forthright?

    Well, there goes my spiel to the traffic cop: “But, officer, no one ever told me that a limit could not be exceeded! Heck — just look at the US National Budget!”

    • Lawyers are human, and like all humans, they make mistakes. Unfortunately, as lawyers, their mistakes may disadvantage their clients.

      No, falling on their swords does not undo the harm of these mistakes, but lawyers acknowledging these mistakes and accepting the potential consequences is commendable. It is, if nothing else, a welcome exception to the norm of lawyers effectively throwing their clients under the bus to protect their professional reputation.