Kasowitz: What’s Up, John?

What does New York real estate litigator Marc Kasowitz have in common with his client, Donald Trump? Neither has a firm grasp of limits. Of knowledge, competence or ethics. But unlike Trump, who enjoys certain protections by dint of his office, Kasowitz is fair game for anyone with a gripe.

It started innocuously enough, Kasowitz chatting up the nice folks walking the White House halls.

In recent days, Mr. Kasowitz has advised White House aides to discuss the inquiry into Russia’s interference in last year’s election as little as possible, two people involved said. He told aides gathered in one meeting who had asked whether it was time to hire private lawyers that it was not yet necessary, according to another person with direct knowledge.

This may seem like a fair enough question to ask the lawyer the president hired, and he answered it. No charge. Everybody loves free legal advice. And how could Kaz not be right? After all, he must be the best lawyer ever or our billionaire prez would never have hired him, right?

Marc E. Kasowitz, a New York civil litigator who represented President Trump for 15 years in business and boasts of being called the toughest lawyer on Wall Street, has suddenly become the field marshal for a White House under siege.

It certainly looks like Trump trusts him, and he’s probably an exceptional civil litigator*. Except this isn’t civil litigation. Just as running a country isn’t the same as running a hotel, defending a president from obstruction charges and impeachment isn’t tussling over closing dates.

So what was so wrong about the advice to White House aides that it wasn’t yet time to lawyer up? It’s fairly obvious to lawyers: Kaz represents a client whose interests are in potential, if not likely, conflict with those of the unrepresented individuals to whom he’s saying, “nah, you don’t need a lawyer, Buhwawawa.”

What he should have done, and what would have been obvious had he been moderately experienced in such matters, was to give Upjohn warnings, also known as “corporate Miranda,” that he’s not their lawyer and anything they say can be disclosed, as its unprivileged. Kaz should have informed (not advised) the aides that he cannot advise them and they must seek independent counsel, unburdened by the facial conflict of interest, for an answer to their question.

Unsurprisingly, two ethics complaints have been filed against Kasowitz, one in D.C. and the other in New York’s First Judicial Department, where he’s admitted to practice law. They’re over-drafted showpieces, based on nothing more than a newspaper’s report, alleging violations of Rule of Professional Conduct 4.3 (communications with unrepresented people) and 4.2(a) (communication with person represented by counsel). Sexy stuff.

Still, had the complaints been one paragraph based on claims made by space aliens, there’s a good chance the nuisance complaints would evoke a departmental disciplinary committee’s demand for a response. Failure to respond is itself a basis for discipline.

But these aren’t the sort of complaints that lead to disbarment. At worst, Kaz will get a public admonition to never do it again. It’s not like he raided an infant’s trust so he could buy blow and prostitutes, which might bring more serious sanctions. If he responds with nothing more than, “Oops, sorry,” he’ll survive. Then again, if he tries to rationalize what he did. there’s a chance he could get a more serious spanking because of arrogance than error.

Error, however, is the point. This was just basic ignorance and inexperience, on Kasowitz’ part. He may have Trump’s trust, but he doesn’t have the background to be a good choice for the job. No matter how much he’s been paid, or how much Trump loves him, or how great a civil litigator he may be, when it comes to managing a criminal investigation against his client and dealing with the emanations and penumbras on the battlefield, the bluster that makes him a big macher in real estate law means nothing in crim law.

The moral of the story? Never bring a knife to a gun fight. Especially a dull knife. Kaz may be the coolest real estate litigator ever, but pretty much any lawyer vaguely familiar with white-collar defense would have known better than to make such a stupid mistake.

*For the unwary, this is a slur coming from a criminal defense lawyer.


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22 thoughts on “Kasowitz: What’s Up, John?

      1. John Barleycorn

        Golf? You golf? Thats news!

        But isn’t what you ARE really saying, is that your office is a lot closer to the UN Headquarters than Broadway for when it comes time to back channel asylum in the Philippines?

        Speaking of which, how does that Lieberman guy do it? Must be his quirky smile eah?

        P.S. Just how many lawyers are there in midtown anyway?

          1. M. Kase

            How do count lawyers recently graduated from law school? Are they each fractional or do they actually provide negative lawyer values?

      2. albeed

        So, did you make the cut at the US Open? I assume you are playing in a disguise, or –
        maybe you are making a few bucks on the side by caddying.

      3. Mike

        Thank you, my computer is happy again. You are too generous. It must have been a good round.

  1. Turk

    When Trump’s lawyer needs to hire a lawyer after only a few days on the job, you know things aren’t going too well.

      1. Turk

        Public? Ha. Dominic Barbara racked up 20 admonition, cautions, etc before the AppDiv let the public know.

        It’s gotta be about money, to count.

  2. Jake

    “dealing with the emanations and penumbras on the battlefield”

    Feeling poetic this morning?

    1. SHG Post author

      I stole the words from Wild Bill Douglas’ opinion in Griswold v. Connecticut. He was feeling poetic when he wrote them.

  3. PseudonymousKid

    Dear Papa,

    Please be careful how loosely you throw around your slurs. Not all of us can grow up and fill the out-sized shoes of dear old dad. Civil litigators are real attorneys too, even if they aren’t always nobly battling the state, or doing anything noble at all for that matter.

    Yours,
    PseudoKid

    1. SHG Post author

      You are a real lawyer. Real lawyer, yes you are. All the other real civil litigator lawyers marvel at your mad deposition skillz.

      1. Billy Bob

        That was great, it really was. We suspect the Kid is not really a kid, and may in fact be a lawyer, a lawyer wannabee, a 3L, or a lawyer with buyer’s remorse–to put it mildly.
        Perhaps a lawyer who is unable to pass the bar after two tries. Ha. Crocodile tears!

        1. SHG Post author

          Oh, Bill. Did you hear the whoosh when this sailed overhead? He’s a lawyer, but a civil litigator, so have a well-earned inferiority complex because instead of trying cases, they yell at each other in depositions and pretend they’re actually litigating.

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