THINKING (MORE) ABOUT IT

FEBRUARY 6, 2025 – I keep telling myself to “give it a rest”—ignore for a day or two, the scene, as it were, in Washington. To do just that, to give the news a rest, today at noon I braved 30 mile-an-hour winds to ski the front side of St. Moritz. This pursuit of a diversion from politics diverted my ski hat and sunglasses right off my head, up into the roaring jet stream, then way down the ski hill. After retrieving hat and shades, I was forced to cut short my workout from seven rotations to five up and down the mountain.

The wind chill did help me chill—figuratively—though. As I waited for feet, face and hands to warm up after my little outdoor adventure, I tried to assess exactly why I’m personally so upset by the Trump-Musk show, or rather, the Trump-abetted Musk Takeover of the government.

After approaching the question from multiple perspectives, I concluded that my vocational background—practicing law—is the main driver of my abhorrence.

In the first place, as a lawyer, I’m acutely aware of . . . the rule of law. I could hardly operate without being grounded in the rule of law, just as an athlete could hardly function without knowing how gravity operates. My career would be finished if instead of observing the rule of law when advising a client, I were to say . . .

“Just do whatever the heck it is you want to do. The law doesn’t matter. If someone else thinks it does, let that party do something about it. Unless and until they do, who cares? And if they want to sue you over it, well, tough. We’ll belittle them and throw mud at them and at walls of the courtroom. If that doesn’t work, we’ll throw more mud at the faces of the appellate justices. If they don’t decide your way, we’ll take a further appeal to the Supremes. If the opposing party wants to play out their so-called “rule of law,” we’ll turn it into a ruler and crack them over the head with it.”

That, readers, is how Trump and Musk operate. Plan A for them is always, flip the bird at the law. Plan B? If you Musk—I mean, must—deal with the law because someone else is using it against you, then distort, obfuscate, and lie, and in any event, appeal. And while the appeal is pending, go ahead and do what you want to anyway.

This contempt for the rule of law is antithetical to how I’ve approached my work and serviced my clients over the past 40-plus years. Thus, when the President of the United States and his Guillotiner in Chief turn government upside down in less than three weeks by shrugging their shoulders at the rule of law, I stop to wonder, “Is this the beginning of the end of American jurisprudence?”

But I’m affected by another critical aspect of my work over the past four decades: legal ethics, a subset of the general sphere of ethics.

Ethical issues in the practice of law can get quite complicated, even for people who by general character, education, and upbringing are what you’d consider thoroughly ethical. In condensed form, legal ethics revolve around three basic areas: conflicts of interest; financial matters; and good faith. In each state strict rules have been adopted in each of these and other aspects of the practice of law. If you don’t follow them carefully, you open yourself to fines, sanctions and possible disbarment.

On the granular level, conflicts of interest can be particularly vexing, given the multiplicity of contexts in which they can arise, often indirectly and obscurely. Likewise, good faith in transactional work or litigation can conflict with “zealous advocacy,” another ethical imperative.  But when the latter leads to bad faith, the offending practitioner is subject to sanctions, some with rather severe consequences.

The strict rules of professional responsibility—legal ethics—are designed to protect the interest of every client and the integrity of our entire judicial system. Moreover, to ensure adherence to the highest ethical standard, there exists an over-arching rule: every lawyer must avoid even the appearance of impropriety. In terms of the vernacular, every proposed move or action by a lawyer must pass the “smell test.” If something doesn’t pass the smell test, it must be eschewed and without hesitation.

Neither Trump nor Musk is a lawyer, but much of what they’ve said, proposed, ordered, and done in business, litigation and politics hasn’t come close to passing a basic smell test. I’m left to believe that neither of these two presidents has an ethical cell in his personal makeup. One or two—perhaps even one or two dozen—Republicans in the House or Senate are surely familiar with ethics, but none of those individuals dares say a word about “conflict of interest,” “emoluments,” “self-dealing,” or “bad faith,” let alone the “mere appearance of impropriety” on the part of Trump or Musk.

All of which leaves me to wonder—if respect for the rule of law and ethics have no place in the highest office of the land, how long before people in the trenches, particularly in my trench, the legal trench, say, “Who cares about the law or ethics if the guys at the top are exempt?” Then what kind of country will we have?

Subscribe to this blog and receive notifications of new posts by email.

© 2025 by Eric Nilsson