Monday, March 26, 2018

Donald Trump Doesn't Know the Meaning of the Word "Conflicted" (But His Lawyers Should)

By Diane Klein

On Monday, March 19, 2018, Trump attorney Jay Sekulow announced the addition of lawyer Joseph diGenova, a Reagan-era District of Columbia U.S. Attorney, to Trump's Russia team.  Whatever attracted Trump to diGenova - his conspiracy theorizing on Fox, his operatic pipes on display at the Gridiron dinner, or his legal acumen -  Sekulow was at the ready. On Thursday, diGenova's wife and law partner, Victoria Toensing (another Reagan-era septuagenarian), joined the team.  That same day, experienced Washington lawyer John Dowd resigned, after warning about potential conflicts of interest related to the pair.  Sekulow began equivocating about the new line-up on Friday, and by Sunday morning, he had to take it all back.  According to his March 25, 2018, statement, Trump was "disappointed that conflicts prevent Joe diGenova and Victoria Toensing from joining the president's special counsel legal team."

While other unnamed sources backstopped this legal concern with the claim of a lack of "personal chemistry" between Trump and diGenova/Toensing, Trump himself was tweeting his usual nonsense.  Even as leading newspapers reported about the unwillingness of reputable Washington lawyers and law firms to represent him, Trump lie-tweeted on Sunday, "don't believe the Fake News narrative that it is hard to find a lawyer who wants to take this on.  Fame & fortune will NEVER be turned down by a lawyer, though some are conflicted."  While I'm sure it's true that at least some lawyers are "conflicted" (in the word's non-legal sense) about the prospect of representing someone as famous as Trump, who also famously lies and does not pay his bills, that is of course not what the word means in this context.

When lawyers say they are "conflicted" (or "conflicted out"), they mean that the rules of professional responsibility either require or permit them to decline to represent a client in a particular matter when doing so would create a conflict of interest with respect to their obligations to other existing or former clients.  Some concurrent representations are absolutely prohibited: a lawyer cannot simultaneously represent both husband and wife in a contested divorce, for example, or both plaintiff and defendant in a breach of contract or tort case. In this situation, known as "direct adversity," the concurrent conflict of interest imposes an absolute prohibition.  The would-be client must find other counsel.

In other situations, however, matters are less black-and-white.  Where the clients are not directly adverse but there is "a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client...or by a personal interest of the lawyer," the representation is permitted, but only if "each affected client gives informed consent confirmed in writing," and the lawyer "reasonably believes" that he or she "will be able to provide competent and diligent representation to" all of them.

Conflicts cannot be avoided by dividing the work between lawyers at the same firm. If an individual lawyer could not represent both clients neither can two law partners.  Model Rule of Professional Responsibility 1.10(a) addresses these "imputed" conflicts of interest.  One law firm partner cannot represent the wife, while another at the same firm represents the husband, nor can one lawyer represent the plaintiff, while another at the same firm represents the defendant.

Which (almost) brings us to diGenova and Toensing - not only law partners, but also spouses.  Even apart from worries about breaches of confidentiality and divided loyalty arising from two lawyers at a firm representing parties with conflicting interests, problematic conflicts can also be created by lawyer-spouses doing so.

Official Comment [11] explains,
When lawyers representing different clients in the same matter or in substantially related matters are closely related by blood or marriage, there may be a significant risk that client confidences will be revealed and that the lawyer's family relationship will interfere with both loyalty and independent professional judgment.... Thus, a lawyer related to another lawyer, e.g., as a ... spouse, ordinarily may not represent a client in a matter where that lawyer is representing another party, unless each client gives informed consent.
In a nutshell, the reason diGenova can't represent Trump in the Russia matter is that his wife Toensing already represents a number of key witnesses in the Mueller probe, among them Mark Corallo, Sam Clovis, and Erik Prince.  (Adding her to the Trump team would only make matters worse.)

Corallo, who retained the couple and their firm in January 2018, is a former spokesman for the Trump legal team (and/or for Marc Kasowitz, depending on which source you read).  Corallo and Toensing go back a ways - both were involved in the Valerie Plame affair about fifteen years ago, when Corallo was part of Karl Rove's PR team (!), and Toensing represented some of the journalists involved.)  Corallo left his position in July 2017, and retained diGenova and Toensing prior to testifying before special counsel Robert Mueller.  His testimony concerned Hope Hicks' statement that certain emails about the June 2016 Trump Tower meeting "will never get out," and other conversations between Trump, Hicks, and Corallo.

Sam Clovis is another Toensing client: Clovis "supervised" convicted felon George Papadopoulos, and Toensing represented Clovis last October in relation to the Mueller probe.  (Clovis was mentioned in Papadopoulos's plea deal.)

Keeping it all in the family, Corallo is also a spokesman and admirer of Blackwater founder, Betsy de Vos brother, likely Seychelles meeting organizer, and fellow longtime Toensing client Erik Prince.  Toensing has represented Prince since at least March 2016, in relation to the federal investigation of Blackwater.

Whether any of these men are current clients, their consent would have to be obtained before either Toensing or diGenova could accept the representation of Donald Trump, if they might be in any way limited in representing Trump by their duties to these other current or former clients.  But according to Fox News, that was no problem.
Corallo told Fox News on Thursday there was no conflict of interest.
"I signed a waiver acknowledging I see no potential conflicts with their representation of the President," Corallo told Fox News in an email on Thursday, explaining it was a "standard" waiver of "potential conflict."
A source close to diGenova and Toensing told Fox News that Corallo, Clovis and the president signed a waiver.
"The conflict is owned by the client.  The conflict privilege is owned by the client," the source told Fox News.  "It's the clients who have the privilege to waive.  And the president waived it too."
This reporting turned out to be way ahead of the facts.  The "source close to diGenova and Toensing" was contradicted on Friday by Sekulow, when he said, "There is an ongoing process regarding potential conflicts."  And the New York Times reported Sunday that "White House aides said Mr. Corallo's assertion [about Hicks] had come up in discussions with the president as he weighed whether to go ahead with Mr. diGenova and Ms. Toensing," which certainly suggests no waiver had yet been agreed to or signed.

And conspicuously absent from the list of those happy to consent to this conflict waiver is Erik Prince.  Even if diGenova and Toensing were crazy enough to believe they could represent Trump in the Russia matter without compromising their duties of confidentiality and loyalty to their other present and former Trump Administration clients, perhaps Prince refused to go along.

(And by the way, if you're wondering whether diGenova and Toensing could just drop Prince or any non-consenting client so they could represent Trump - the answer is "no."  That so-called "hot potato" strategy is strongly disapproved by the courts, and so long as the matter in which they represent these other clients - generally, Trump-Russia-obstruction of justice - is "the same or substantially related" to their representation of Trump, under Model Rule 1.9, the other clients' consent would still be required.)

By Sunday, Reuters reported, with apparent 20/20 hindsight,
Trump wanted to hire diGenova after seeing him on television, but the conflicts were obvious, said a person familiar with the matter, who added that it was surprising that consideration for adding diGenova to Trump's team had gotten so far.
But that's wrong, too.  The issue is not whether the conflicts exist ("obvious" or otherwise).  The issue is the one Fox addressed - albeit prematurely: whether the conflicts were both waivable and waived, by all affected clients.  If one or more of those Toensing clients is giving (or has given) testimony to Mueller directly adverse to Trump, or has shared information with Toensing that she could neither use in representing Trump (because it would violate the other client's confidences), nor refrain from using (because it would violate her duty to represent Trump zealously), the conflict goes far beyond what a "standard" waiver of "potential" conflicts could cover.  One cannot help but wonder if current clients of Toensing are reassured by her and diGenova's statement that, "We thank the President for his confidence in us and look forward to working with him" (on other matters).  If I were Erik Prince, I might be feeling a little "conflicted" about my choice of counsel right about now.

4 comments:

Shag from Brookline said...

During Sen. Joe McCarthy's hi-jinks days in the '50s, readers of the late Walt Kelly's "Pogo" would inform us of people having a "conflake of int'rest" in proceedings from his perch at a FL mythical swamp that out-ethiced the swamp in D.C. that Trump has made into a GOP reservoir instead of draining. Query: Was it Cambridge Analytica that gave its client, the 2016 Trump campaign, "drain the swamp"? Recall that Trump said it was not his idea and he didn't like it, but used it, to his surprise, successfully - in words but not in deed.

Diane Klein said...

The latest reporting suggests the announcement that they were joining the team came before Trump had even MET them. Hard to know (if that is so) what to make of the Fox 'reporting' about the conflict waiver(s). My current theory is that it's the Toensing-Prince connection that really caused the problem.

Joe said...

Josh Marshall commenting on the recent interview:

"Note that Daniels’ then lawyer apparently had much more lucrative offers to tell her story but directed her toward the deal with Michael Cohen. Given that Karen McDougal and Daniels both ended up with the same lawyer, there’s now lots of evidence suggesting that the lawyer, Keith Davidson, was actually in cahoots with Cohen. That’s a big no no in terms of holding on to your license to practice law."

https://talkingpointsmemo.com/edblog/a-few-thoughts-on-stormys-show

Talking conflicts.

Shag from Brookline said...

At TPM Marshall has had quite a few interesting posts on Trum[ attorney Cohen and various aspects surrounding the Stormy NDA. As I recall, Davidson made some statements early on that were nice about and defensive of Cohen that seemed suspicious to me. I wonder how Stormy engaged Davidson. Did Davidson contact her about a possible cash deal or did Stormy engage him first?