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sites that were apparently quoting the NYT article had the follow language, which no longer appears in the NYT version: "Democrats on the Judiciary Committee were livid, if not entirely surprised by the White House’s intervention. The committee’s chairman, Representative Jerrold Nadler of New York, said last week that he was prepared to have his panel vote to hold Mr. McGahn in contempt of Congress if he does not show up on Tuesday. Though a black mark on a witness’s record, a contempt citation would most likely result in the House turning to a federal court to try to enforce its subpoena." "At the same time, if he defies the White House, Mr. McGahn could not only damage his own career in Republican politics but also put his law firm, Jones Day, at risk of having the president urge his allies to withhold their business. The firm’s Washington practice is closely affiliated with the party."
the linked article shows no hits for "black mark." is it possible that the paper edited the article?
Kathleen, great post. If your fifth paragraph is referring to California’s 3-310(B), I just wanted to add that it requires not the “consent” required under 3-310(C) but only written disclosure to the client. Your post makes that distinction but because lots of our readers here are not familiar with California's odd rules, I wanted to flag that. My instinct (without looking up case law) says that her business deal with the entity probably warranted a 3-310(B) disclosure to Weinstein the individual. Also, I’ve wondered about what law would apply, given that Bloom is licensed in NY and Weinstein is there; wondered about whether Bloom’s reputation as a fearless champion of mistreated women might present a personal interest conflict under the ABA approach requiring consent from Weinstein (probably not?); wondered if Bloom had been authorized to publicly criticize Weinstein’s conduct the way she did (quite plausibly, it might have been part of a coordinated PR strategy); and wondered if her comments upon termination were authorized or appropriate. Almost worth of an exam question.
Steve, thanks. My question was whether recusal was warranted assuming those facts were reasonably accurate. Note that the governing law includes personal conflicts and is expressly an "appearance" standard. (It's worth nothing that the author, a well-respected journalist, used quotation marks for conversations that included only Comey and Mueller. Iow, it appears he interviewed the men themselves. Regardless, if we assume for present purposes the author was accurate, that warrants recusal, right?) You say that "The conflict allegations have the value of casting court [sic: doubt?] on Mueller's investigation. That seems to be the purpose." Well, if there are grounds for recusal, or a legitimate argument for recusal, of course doubt will follow. Note, too, that the governing CFR takes account of the views of the person or persons being investigated: "Whether relationships (including friendships) of an employee to other persons (outside his or her family) or organizations are "personal" must be judged on an individual basis with due regard given to the subjective opinion of the employee." The legal standards appears to be 28 USC Section 528 which provides: "The Attorney General shall promulgate rules and regulations which require the disqualification of any officer or employee of the Department of Justice, including a United States attorney or a member of such attorney's staff, from participation in a particular investigation or prosecution if such participation may result in a personal, financial, or political conflict of interest, or the appearance thereof. Such rules and regulations may provide that a willful violation of any provision thereof shall result in removal from office." And 28 CFR Section 45.2 which provides in part: Disqualification arising from personal or political relationship. (a) Unless authorized under paragraph (b) of this section, no employee shall participate in a criminal investigation or prosecution if he has a personal or political relationship with: (1) Any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution; or (2) Any person or organization which he knows has a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution ... (c) For the purposes of this section: (2) Personal relationship means a close and substantial connection of the type normally viewed as likely to induce partiality. ... Whether relationships (including friendships) of an employee to other persons (outside his or her family) or organizations are "personal" must be judged on an individual basis with due regard given to the subjective opinion of the employee.
Toggle Commented Jun 27, 2017 on Why Mueller is Not Conflicted at Legal Ethics Forum
Stephen, thanks. I noted in my post that she acted with respect to EO1 and not EO2. Still, in my view when one reads the 9-0 per curiam decision, one sees that there are such compelling arguments for POTUS power on that topic (after Congress delegated what it delegated) that the notion that the AAG could forbid defending the EO1 entirely was either based upon extraordinarily bad legal analysis or upon personal politics. You are correct, of course, that "uphold" isn't the right term, and I should have noted that they reversed the lower courts' injunctions. But the conclusion remains that there was so much legal support for at least large portions of EO1 that Yates' act was either extraordinarily bad legal analysis or upon personal politics. As i and others noted at the time, she should have resigned if she felt that way.
RLFP, thanks for replying. I take it, then, even if all those passages were accurate you would see no grounds for recusal, including under the appearance of impropriety standard?
Toggle Commented Jun 27, 2017 on Why Mueller is Not Conflicted at Legal Ethics Forum
The friendship angle has been overstated and it’s interesting to me that articles debunking the recusal argument tend to cling to just the friendship angle. The angle with some bite, imho, is the professional relationship angle. Garrett Graff, a former editor of Politico who wrote a book largely about Mueller, wrote an article about the two men several years ago, before the recent issues arose. Assume that Graff is roughly accurate in these passages from the article. Would there be grounds for recusal? That dramatic week had united the two men—both career public servants—deepening a friendship forged in the crucible of the highest levels of the national security apparatus after the 9/11 attacks. Mueller, now 68, and Comey, now 52, would become close partners and close allies throughout the years ahead. Now, today, President Obama’s decision to appoint Jim Comey the next head of the FBI—to take over after Bob Mueller’s remarkable 12 years as director—brings a strong sense of continuity to the nation’s chief domestic law enforcement agency. Both known as Republicans but primarily as apolitical prosecutors, Comey and Mueller are set to begin a new chapter of a friendship that stretches back over a decade, as one man hands over the reins of one of the most critical agencies in the war on terror to the other. The stressed Comey had few people he could turn to for advice; almost no one was allowed to know the program existed, and disclosing the program’s existence to someone outside that circle could send him to prison. In fact, there was only one person in government whom he could confide in and trust: Bob Mueller. The two men met for a long conversation on the afternoon of March 1 to discuss the deputy attorney general’s concerns; that conversation, sources say, was the first time Mueller was made aware of the pending stumbling blocks. Comey’s circle of allies was shrinking fast. Riding down Pennsylvania Avenue in the back of Mueller’s SUV, the FBI director and the acting attorney general sat quietly. Comey thought, A freight train is heading down the tracks, about to derail me, my family, and my career. He glanced to his left at his fellow passenger, thinking, At least Bob Mueller will be standing on the tracks with me. Now, after years apart—during which Jim Comey worked at Lockheed Martin and the hedge fund Bridgewater before leaving this spring to teach law in New York—the two men appear destined to reunite this summer as the torch passes on the seventh floor of the hulking J. Edgar Hoover Building on Pennsylvania Avenue. To find that person, the Obama administration evidently didn’t have to travel far—choosing one of Mueller’s most trusted allies as his replacement. With Comey evidently set to inherit the Bureau shaped and built by Mueller in the 12 years since terrorists attacked the World Trade Center, the Pentagon, and Flight 93, the retiring director at least knows he’ll be leaving the FBI in the hands of someone with a strong sense of right and wrong.
Toggle Commented Jun 24, 2017 on Why Mueller is Not Conflicted at Legal Ethics Forum
Richard, but that's not what she said. What she said justified resignation but not her unlawful order. At a time when she could have modeled the rule of law and professional ethics, she failed. Had she given a short speech and resigned, she'd be an ethics hero to me. Now she's not.
Toggle Commented Feb 1, 2017 on Sally Yates (Updated) at Legal Ethics Forum
This question highlights why it's important to teach students the difference between division of fees with a lawyer in another firm, sharing fees with non-lawyers, and sharing fees just for a referral. The fact patterns can easily be confused.
Toggle Commented Sep 2, 2016 on Fee Sharing or Not? at Legal Ethics Forum
as i recall, many sources say that Abraham Lincoln stepped in as judge when Judge Davis was ill or absent. of course, that was then and this is now. out in california, we have lawyers sit as judges in small claims all the time, albeit in an officially approved way. i would not like to see the end of legal careers either.
I found this article to have useful information that I was not finding in most media and Facebook accounts.
Law School Grad, again thanks. Here's a hypo. Lawyer is defending Client in civil litigation and in the course of preparing Client for possible cross-examination at depo and trial the Lawyer comes to realize that ten years ago Client engaged in scandalous, embarrassing conduct and that the conduct is generally known in the community. Is it the case under the Restatement that the lawyer may disclose that fact to others without violating the duty of confidentiality? To make the hypo more pointed, Lawyer is at a neighborhood bbq and recounts client's conduct to a couple of neighbors who were unaware of Client's conduct. Is the Restatement result that there's no breach of confidentiality if the conduct was generally known?
We've had some interesting cases in California recently, walking that line. Mendoza v. Hamzeh 215 Cal. App. 4th 799 (2013)( not ok; "We are in the process of uncovering the substantial fraud, conversion and breaches of contract that your client has committed on my client. … To date we have uncovered damages exceeding $75,000, not including interest applied thereto, punitive damages and attorneys' fees. If your client does not agree to cooperate with our investigation and provide us with a repayment of such damages caused, we will be forced to proceed with filing a legal action against him, as well as reporting him to the California Attorney General, the Los Angeles District Attorney, the[IRS] regarding tax fraud, the [BBB] , as well as to customers and vendors with whom he may be perpetrating the same fraud upon [sic].”) Malin v. Singer 217 Cal. App. 4th 1283 (2013)(ok; tied to alleged damages and only hinted disclosure was via court filing; "I have deliberately left blank spaces in portions of the complaint dealing with your using company resources to arrange sexual liaisons with older men such as 'Uncle Jerry,' Judge ------, a/k/a 'Dad' (see enclosed photo), and many others. When the complaint is filed with the Los Angeles Superior Court, there will be no blanks in the pleading.”); Flatley v. Mauro, 139 P. 3d 2 (Cal. 2006).(2006) 39 Cal.4th 299 (2006)(not ok; demand tied to value of secrecy and threatened disclosure was via media) Stenehjem v. Sareen 2014 DJDAR 7583 (June 13, 2014; 6th Dist.)(not ok; threatened to have person arrested if no settlement reached).
[Law School Grad], that's very helpful, thanks. 1. Can you give us a concrete example where the California, ABA, and Restatement approaches would come out differently? 2. When you say that the Restatement exempts generally known information but prohibits disclosure where it it likely to "damage" the client's interests, how is that different than California's "embarrassing or detrimental" standard? [note: comment was edited in brackets above.]
Patrick, I can't respond today but hope too soon. Thanks for the challenging counter-examples.
I wonder if Leland and O'Donnell account for Dan's argument. I have no doubt that Geller's actions were a direct cause of the homicides of the two attackers and the real possibility of violence was plainly foreseeable. (Why else have so many armed guards there?) But there's a big jump left to make before we get to moral responsibility for self-defense against would-be mass murderers. It's not clear to me that that case has been made.
It's not clear to me why there has been a recent eruption of discussion and argument about the types of information that law schools should be providing to applicants, students, and graduates. The American Bar Association finally acted, and acted correctly, in response to countless demands for more accurate information about the outcomes that law school graduates were achieving. The best of those demands came from the Law School Transparency project, which has consistently called for clear, accessible, and accurate information. Under the new regulations, there is very little room for mischief. Moving forward we can expect that the marketplace will receive reasonably accurate data. LST deserved enormous credit from the bar for what it has accomplished. So do the many professors and commenters who aided in that cause. Part of the recent debate is a rearguard argument about the historical practices that law schools engaged in. I'm surprised when I read the accounts written as if the law schools had not engaged in juking the statistics. Beginning in 2005, when this blog began, we have discussed any number of public statements by law schools that were misleading or even false. Some of them were done to manipulate the law school rankings. Others were done to make it seem as if law school outcomes were rosier than they were. As an aside, I want to add that in the mid-1980s, I worked at a plaintiff side law firm that prosecuted antitrust and business tort claims. The senior lawyers at that firm had been legal pioneers in bringing causes of action against entities that made government filings in deceptive ways. At that law firm, I learned the difference between the use of regulatory methods and the abuse of them. Strictly following a set of government regulations does not eliminate the ability to make misleading statements. To give just one example, I recall a case involving Small Business Administration set-aside contracts. Businesses were supposed to take their size each week and average them over the prior 52 weeks. But there was a regulation left on the books that apparently permitted businesses to take their size one week each quarter and average those four measurements. Certain businesses would "fire" employees for just that week each quarter, so as to manipulate their size and remain eligible for small business contracts. Those businesses later took the position that they were simply following government regulations. But it was fraud. One of the unfortunate side effects of the efforts by law schools to cook their books was that it taught the law students the wrong message. It taught them by example that adults cook the books. Even before 2005, when I discussed these issues with law students, they were often acutely aware of the games that were being played by the law schools. That is the worst kind of legal ethics education. Among law professors, there was and still its considerable discussion of the manipulation of statistical measurements in the context of law school rankings. Why would we expect any school engaging in that sort of conduct not to do the same with statistics about student outcomes? And, of course, they did. Sometimes it was outright lying. Sometimes it was shading the truth. Sometimes it was the use of literal statements that were too clever by half. For example, "95% of our graduates are employed nine months after graduation and the median firm income of our graduates was $125,000." Statements of that type could be made by law schools where half the students were not getting jobs as lawyers and where the large bulk of the students who reported their incomes to the schools were the small sliver of graduates who were employed by large law firms. So it would have been far more accurate for those law schools to say, "half our graduates don't get jobs as lawyers and among the 50% that do, the mean starting salary is $67,000." That was the information that applicants, students, and grads were asking about. Half-truths can be whole lies. The new revisionist argument is that law schools should be permitted to simply report the percentage of their students that are employed in any sort of job. (E.g., a job at Starbucks is a job at Starbucks, whether it is in the general counsel's office or on the front line serving lattes.) That is the method, we are told, that federal agencies employ. But that is not the question that all of us know the law school applicants, students, graduates are asking. One normally judges the honesty of a statement by the reasonable expectations of the listener. The good news is that the revisionist version does not suffice under the new ABA regulations. So, the hollow argument that reporting any sort of employment should suffice is one that simply does not suffice under the governing regulations. The fraud suits against law schools may have been unsuccessful but the critics have won the battle over the regulations. They have the positive law on their side. As I say, moving forward the era of "big fraud" should be over. But please do not let it be said that the law schools were honest. Fraud, clever half-truths, and puffery were commonplace. I recall being in the audience at a presentation by law school deans in which they scoffed at the notion that law schools were "hiring" their own graduates for short periods of time at very low wages so as to permit the law schools to report their graduates as being employed in law jobs. I sat there in the audience, incredulous. I sat with two professors who were likewise incredulous. Among the three of us, we had first-hand knowledge of multiple law schools that were engaging in that very practice.
David, I wish jury service were far more frequent and that it played the role of civic education that Tocqueville described. Suppose that by my age (54), I had served on 3-4 criminal juries and 3-4 civil matter juries. I would be a much better informed citizen and voter, I suspect.
Wow. Although normally the notion of a DQ stemming from pre-ACR communications isn't novel, intriguing, or complex, this fact pattern has so many facets -- and has star power to boot. I guess I wish for a mutually agreed upon resolution short of litigation, but a full-on DQ motion would be fun to see. And I'd say that Tigran's comment isn't necessarily unrelated. In my experience, regardless of what the rule and black letter law say, judges evaluating DQ motions often use their intuition to determine who they trust and don't trust. That Second Circuit case, if brought the attention of a trial court judge deciding a DQ motion, might flavor the result.
If "SL" is "Steve L" is "Steve Lubet, I agree that the analogy is a good one and it made me change my mind on whether I'd advise the justices not to preside over SSM in states where there was no challenge.
Toggle Commented Apr 30, 2015 on Politics and SCOTUS recusals at Legal Ethics Forum
Steve, for the record, I've long been critical of Scalia, Thomas, and Ginsburg for appearing too partisan in their speaking engagements. As for your gun ownership question, it's a good one and it makes me rethink my comment up above that I'd advise justices not to preside at SSM even where the legislature had fully enacted provisions for it. If there were laws in place permitting gun ownership in Virginia and if those laws weren't being tested, I'd see no issues with Scalia owning a gun in conformance with Virginia law even while Heller was pending. (Kagan, too, for that matter. It seems that she and Scalia go hunting together.) But suppose that the USDC for DC had struck down DC's zero-tolerance gun laws and the matter was wending its way up through the DC Circuit and potentially to the SCOTUS. In that case, yes, I'd advise Scalia not to violate the struck-down law while in DC and to wait for the dust to settle. (Likewise, I'd still advise justices not to preside at weddings if that particular SSM provision was being challenged.) And I'd still advise against heading down the proposed road, which to me is like handing a three year old a hammer.
Toggle Commented Apr 30, 2015 on Politics and SCOTUS recusals at Legal Ethics Forum
Steve, thanks for commenting. You and I may disagree, but I'd much prefer not having SCOTUS adopt a formal set of binding rules that would encourage that sort of attack/request/motion for recusal (from the right or the left). If the justices had asked my advice, I would have suggested that they not preside at any SSM weddings before the issues were resolved at the highest governing level -- and certainly not at any weddings that occurred within jurisdictions where SSM weddings were happening contra the views of the legislature or any initiative process. Assuming that in Maryland or DC the matter had been resolved, I still would have advised them as a matter of prudence not to participate before the reasonably anticipated issues reached the SCOTUS.
Toggle Commented Apr 29, 2015 on Politics and SCOTUS recusals at Legal Ethics Forum
I'm going to have a longer response, but now I'd say that bringing in Holocaust denial comparisons is way out of bounds but that Merritt's observations are right on the money.
Richard, I'm sure that's part of it. But looking at what happened during the DOMA litigation, it seems probable that large firms also feared being identified and boycotted on law school campuses, etc. (Charles Silver's new draft article has a lot of the history of that incident.) Maybe that's a good thing?
Laurel, thanks. I read that interview and if I had been asked by that lawyer for advice, my advice would have been, "say much, much less."