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Kathleen Clark
Professor of Law, Washington University in St. Louis
Interests: Legal Ethics, Government Ethics, The Law of Whistleblowing, National Security Law
Recent Activity
Bryan Johnson's response after being called to account for his violation is a textbook example of how to responsibly handle an accurate accusation: He acknowledged his error. He explained how his mistaken thinking led to his error without attempting to justify that error. He allowed others -- the lawyer representing him & colleagues who had worked with Johnson -- identify mitigating factors. Judge Gee "sentenced Johnson to 75 hours of community service with a certified public institution as well as completing two legal ethics courses within the next six months." http://www.mcclatchydc.com/news/immigration/article32269356.html
FYI, I wrote about this phenomenon, which I called "runaway lawyers" (i.e., government lawyers who are not tethered to a client) in this article: Confidentiality Norms and Government Lawyers, 85 Wash. U.L. Rev. 1033 1062-68 (2007) available at: papers.ssrn.com/sol3/papers.cfm?abstract_id=1154245.
I'd like to see the legal analysis of government ethics issues that presumably preceded this solicitation. A few additional thoughts about this: 1) Is it clear that Secretary Sebelius was acting in her personal -- rather than official -- capacity? 2) This incident may illustrate the sometimes obscure concern that motivated Congress to criminalize salary supplementation (18 USC 209). Congress wants to control -- through appropriations -- what executive branch agencies do. Allowing agencies to solicit additional funds from private sources undermines Congressional control over executive branch agencies. 3) Does HHS have the authority to accept gifts? If so, would that be a legal route to accomplishing her goals?
What might not be obvious from these videos -- but became clear from Adam Reposa's presentation at the APRL conference -- is that Adam Reposa is a cause lawyer. ("a cause lawyer is one who works out of the professional mainstream . . . engaging in moral activism for marginalized clients" http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/sarasche.htm)
If you're interested in reading more about Matt Diaz, check out my analysis of Diaz and other government lawyer-whistleblowers in Confidentiality Norms and Government Lawyers, 85 WASH. U.L. REV. 1033 (2007) (papers.ssrn.com/sol3/papers.cfm?abstract_id=1154245).
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Jun 1, 2012