Why Michael Cohen’s Testimony Shows the Need for Regulating Law Firms

 

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On Wednesday, lawyer Michael Cohen testified before Congress. He admitted before Congress that “many times I ignored my conscience and acted loyal to a man when I should not have. Sitting here today, it seems unbelievable that I was so mesmerized by Donald Trump that I was willing to do things for him that I knew were absolutely wrong… But in the mix, lying for Mr. Trump was normalized, and no one around him questioned it. In fairness, no one around him today questions it, either.” In describing how lying and cheating became normalized, Cohen showed the importance of workplace culture and why law firm entities need to be regulated.

In the article “Regulating Law Firms in Canada”, Professor Dodek, builds the case for law firm regulation. Professor Dodek explains “It is not enough to simply regulate the individuals who make up law firms because law firms have an independent existence and identity. Individual lawyers promote their practices to the public through the vehicle of the law firm.”

In the context of a law firm, a lawyer’s malfeasance may be attributable to the law firm’s policies and culture. For example, a lawyer may find herself in a conflict of interest because she followed the law firm’s questionable conflict screening process. Or, a lawyer may cheat in a case because cheating is so widespread in the firm’s culture.  “In such cases, it is not accurate or fair to attribute an individual lawyer’s breach of the rules of professional misconduct solely to the lawyer’s actions if the lawyer was following the firm’s procedures. The individual lawyer should be held accountable for her actions but so should the law firm as an entity.”

Professor Dodek outlines how different jurisdictions regulate law firms. For example, in Quebec, every firm must provide the Barreau du Quebec with a list of its members and stipulate that that the entity will ensure that its members work in an environment that allows them to comply with the law and with the Professional Code. In Nova Scotia, the Barristers’ Society can discipline law firms. Firms must register with the Society and also file an annual report.

In the case of Michael Cohen, he did not wake up one day in law school and suddenly decide he was going to be an unethical lawyer. He gradually became an unethical lawyer, until it was the only way he knew to practice. Working for Trump, in a culture of lying and cheating, only encouraged his bad behaviour. Malfeasance was so widespread that his actions were partly attributable to an organizational culture.

 

(Views are my own and do not reflect the views of any organization.)

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