Thursday, July 20, 2017

2017: Now Officially The Summer My Professional Responsibility Exam Questions Wrote Themselves

By Diane Klein

On July 17, 2017, The Rachel Maddow Show on MSNBC featured a segment about the latest allegations of financial wrongdoing involving Paul Manafort, Donald Trump's second campaign manager and attendee at the now-notorious Trump Tower meeting with Russian lawyer Natalia Veselnitskaya.

As part of that story, Maddow mentioned that Manafort is represented by Reginald Brown, a partner at Washington, D.C.-based megafirm WilmerHale.  Manafort hired him back on March 24, 2017.

For those who don't know, the law firm with the name that sounds like hipster beer is the result of a 2004 merger between Wilmer, Cutler & Pickering, and Boston-based Hale and Dorr.  It employs more than 1000 lawyers, 400 of them in D.C., the others spread over eleven more offices.  And virtually every lawyer associated with the Trump-Russia scandal is connected to it.

Robert Mueller, appointed Special Counsel in the Russia investigation on May 17, 2017, was until he accepted that position a partner at WilmerHale - and he took three more WilmerHale partners with him (Jeannie Rhee, James Quarles, and Aaron Zebley). 

And on top of that, Jamie Gorelick, hired by Jared Kushner and Ivanka Trump way back in December, 2016, is also a partner at WilmerHale.  But she is no longer Kushner's Russia counsel.  Why not?

On June 26, 2017, the New York Times shared this statement from Gorelick:
When Bob Mueller left WilmerHale to become special counsel and three of our colleagues joined him, we asked Mr. Kushner to get independent legal advice on whether to continue with us as his counsel.  He engaged Abbe Lowell to advise him and then decided to add Mr. Lowell to the team representing him in the various inquiries into the Russia matter.
As with so much that comes out of Trumpland on the Trump-Russia scandal, her statement "evolved."  By July 14, 2017, she said this:
As we have stated, once Bob Mueller and three of our partners left the firm to form the Special Counsel's Office, we advised Jared to get independent legal advice on whether to continue with us as counsel.  As a result of this process, Jared decided that Abbe [Lowell] would represent him in the Russia-related inquiries.  We are currently helping Abbe's team.  We will continue to work on the matters for which we were originally retained, with regards to ethics compliance, the SF-86 process, and related issues.
To the apparent consternation of the liberal MSNBC commentator, the intra-firm conflict that pushed Gorelick out had no effect on Brown.  On air, Maddow mused, "Why did Jared Kushner lose his Russia lawyer, but Paul Manafort gets to keep his? How can there be a conflict for one of them and not the other?"

Though she may have been asking rhetorically - she may have meant to imply that Brown is surely as conflicted as Gorelick - the answer almost certainly lies in an arcane but fundamental area of professional ethics: conflicts of interest, and more specifically, Washington, D.C. Rules of Professional Conduct 1.71.10, and 1.11, together with some general principles of legal ethics.

First, a few general principles.  American legal ethics begins from the idea that in our adversarial system, a lawyer owes each of his or her clients loyalty and zealous representation, a nearly single-minded devotion (within the limits of the law) to advancing the client's interests.  Relatedly, a lawyer must keep the confidences of the client, and not disclose or misuse that information to the client's detriment.

A second general principle is that lawyers who practice together presumptively talk to one another, and can do so freely without violating attorney-client privilege or the professional duty of confidentiality.  For conflict of interest purposes, the lawyers in a firm can be thought of as one giant "superlawyer," with a single brain that knows all the confidential client information that has been shared with any one of them.

Rule 1.7 contains the basic prohibition on representing clients whose interests conflict.  To begin with the simplest case, one lawyer cannot represent two opposing parties in a single piece of litigation (a classic example is the divorcing couple).  A lawyer cannot represent both A and B in the suit A v. B. This situation of so-called "direct adversity" - when the representation of one client would involve the assertion of a claim against another person the lawyer is representing in the same litigation - is classified as "unconsentable" - the conflict is unwaivable, even if the clients agree to it.

Beyond that, the rules traditionally prohibited a lawyer from taking on as a new client any existing client's opponent even in unrelated litigation.  A lawyer who represents A against B will be conflicted in representing B against C.  How can the lawyer energetically fight against B in the first suit, and for B in the second?  And even if it would be possible for the lawyer, A might naturally have concerns about where the lawyer's loyalties really lie (especially if B's suit against C is much more lucrative for the lawyer than A's suit against B).

But Rule 1.7 goes considerably further, and prohibits representation of two clients if the representation of one is likely to be "adversely affected" by representation of the other, or if "the lawyer's professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer's responsibilities to or interests in a third party or the lawyer's own . . . interests."

This Rule would probably prevent one lawyer from representing, for example, both Manafort and Kushner or Trump. A perception of favoritism towards one or the other, or any variety of perceived disloyalty, would make effective representation difficult.  Whatever Manafort thinks of the Trumps now, it is hard to imagine him feeling good about his lawyer working for the man who helped get him fired. By the same token, a lawyer representing members of the Trump family and hoping to retain their good graces might shy away from making certain arguments on behalf of Manafort.

But of course, one lawyer does not represent all these people.  However, Rule 1.10 expands the circle of conflicted lawyers to all who practice together in a firm.  This concept, called "imputation," holds that lawyers practicing together may not undertake a representation that any one of them practicing alone could not ethically undertake.

However, most such conflicts, under Rule 1.7 or resulting from Rule 1.10's imputation effects, can be waived after full disclosure of the conflicts and risks to the clients, and their informed consent.  This is intended to reflect values of client autonomy and the client's right to choose their own counsel.  It also reflects the realities of large firms, with many lawyers, who do not share confidential client information indiscriminately, precisely in order to preserve their ability to represent people all of whose interests do not necessarily align.

Therefore, under Rule 1.10(a)(1), even though Gorelick had already landed the First Daughter and Dauphin as clients, Reginald Brown was able to take on Manafort as a client, so long as all three clients gave informed consent.  Perhaps having announced Manafort's firing to him, no doubt leaving bad blood between them, Kushner didn't see any reason to withhold consent from another WilmerHale lawyer representing Manafort.  (WilmerHale might even require advance waivers of such conflicts to the maximum extent permitted by Comment [31] to Rule 1.7, so that one high-profile D.C. lawyer at the firm wouldn't impede another.)

Then Mueller was tapped to be Special Counsel, triggering Rule 1.11. which applies to lawyers moving from the government into private practice, or (as here) vice versa.  This rule, obviously custom-tailored for life in Washington, D.C. , provides in subpart (d) that "a lawyer currently serving as a public officer" (like Mueller and the other Special Counsel's Office lawyers) is only prohibited from participating "in a matter in which the lawyer participated personally and substantially while in private practice." In other words, as long as Mueller and his crew stayed away from Brown and Gorelick's representations of Trump associates, he was not conflicted out of the job.

Comment [14] to Rule 1.10 explains further.  Mueller (and the other WilmerHale partners) would be conflicted in investigating the clients of their former firm
only when the lawyer involved has actual knowledge of information protected by [the confidentiality rules].  Thus, if a lawyer while with one firm acquired no knowledge of information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same or a substantially related matter even though the interests of the two clients conflict.
Therefore, so long as Mueller, Rhee, Quarles, and Zebley neither participated "personally and substantially" in the representation of Manafort, Kushner, or Ivanka Trump, nor acquired "actual knowledge" about Manafort or Kushner's Russia ties, they have no conflict.  (And had any of the WilmerHale lawyers acquired such knowledge, it seems likely that one of the affected clients - and possible investigation targets - would have sought to block his appointment.  They didn't.)  So far, so good.

But when the Trump-Russia investigation turned its sights on Jared, something changed for Gorelick. Remember that husband-wife conflict of interest? Sometimes it's not a divorcing couple - sometimes it's a couple whose interests appear, at the beginning of the representation, to align.  Rule 1.7(d) addresses these later-arising conflicts, but doesn't actually require the lawyer to withdraw simply because the "matter involves a specific party or parties and a position to be taken by that client in that matter is adverse to a position taken or to be taken by another client in the same matter."  Comment [19] to Rule 1.7 identifies the conflict that results when "a lawyer is aware that representing one client involves seeking a result to which another client is opposed."

Consider the range of positions it might best suit Kushner to take about his own, Donald, Jr., and perhaps, Donald, Sr.,'s, relationship with Russia during the campaign, and after - and all the ways those might diverge from the positions Gorelick's other client, Ivanka, might prefer. Consider the "results" a lawyer might seek for Jared, to which Ivanka would be "opposed."  Kushner's father has already gone to jail, after all.

What's more, for all we know, Jared or Ivanka may already have shared information with Gorelick that is damaging to Don, Jr. - information that can more easily be used by Abbe Lowell, whose representation will not be adversely affected by any responsibilities to Ivanka Trump.  Because he doesn't have any.

So there's your answer, Rachel Maddow. Manafort gets to keep his low-profile counsel, Reginald Brown, because (it's safe to assume) no other lawyer at WilmerHale - not Gorelick, not Mueller - knows anything about what his client has told him.  (Though personally, my money is on Manafort as the one who dimed Irakly "Ike" Kaveladze to Mueller, as part of a deal for Manafort.)  Gorelick, the first WilmerHale lawyer to the party when she was retained by Jared and Ivanka not long after the election, looks like the first to show herself to the door.  Better that than to get in between Jared, Ivanka, Don, Jr. and his father.