Conflicting views about conflicts of interest

Professor Glenn Reynolds at the University of Tennessee Law School — a/k/a InstaPundit —  is another of the most respected bloggers around.  As I aspire to do here, he frequently comments on law, politics, and the intersection between them.  I usually find myself agreeing with him on the merits of issues, and certainly respect his sense for what's newsworthy. 

Moreover, conflicts of interest is a topic of particular interest to me — a topic that I've written and lectured about at continuing legal education seminars, thought about repeatedly in considering whether to accept engagements and in drafting engagement letters, and on a few occasions had to fight out with opposing counsel in pending litigation. 

So I was quick to click to follow the link to learn more after reading this short post on InstaPundit last night:

CONFLICT OF INTEREST IN THE 9/11 PANEL: And it's a doozy. Dwight Meredith is right: this is unacceptable.

Mr. Meredith's website, called "P.L.A.—a Journal of Politics, Law & Autism," is new to me, but my first reactions to it are quite positive and his positions indeed appear to be both cogently expressed and substantive.  I'm inclined to disagree somewhat with him (and therefore with Professor Reynolds) on the merits of this particular issue, though.

Their proposition is that it's wrong for a high-profile private-practice lawyer in Washington to be serving on the very impressively titled National Commission on Terrorist Attacks Upon The United States — an official government commission created after 9/11 — while the law firm in which that lawyer practices is simultaneously defending the Saudi government and/or members of the Saudi royal family in lawsuits brought by the families of 9/11 victims. 

Whether the Saudi government and royal family are culpable in the terrorist attacks of 9/11, and if so to what extent — acts of omission versus acts of commission, negligence and stupidity versus active cupidity, etc. — are topics of much current public debate.  They're also topics that are likely to become "outcome determinative" in private civil litigation like that referenced by Mr. Meredith.  Put less delicately, whether lawyers representing families of the 9/11 victims win their cases against the Saudis, or extract substantial cash payments from the Saudis as part of pretrial settlements, hinges on what they can prove about just how involved the Saudis were and how bad the Saudis' behavior was.

I'll ask my nonlawyer readers to simply take it on faith that from a legal standpoint, there is no doubt that there is at least a potential for conflicting interests somewhere in this situation.  Exactly where and to what extent — well, there's the rub.  But I'll spare myself and the world yet another exegesis of the relevant canons of ethics and interpretive caselaw here — this post will be long enough as it is, and I doubt that the canons or the caselaw form the basis for whatever disagreement exists between me and Mr. Meredith & Professor Reynolds.

Hypothetically, if my law firm and I were asked to undertake the representation of a 9/11 victim family in a lawsuit against the Saudis, before accepting the engagement we'd do an internal "conflicts check."  Conflicts checks are easy in tiny firms like the one I work at now, but they can be fiendishly hard in very large ones like those Mr. Meredith's post mentions.  In either a solo practice or an 800-lawyer international megafirm, though, the question that we must ask ourselves is basically this:  "Are we already representing (or have we in the past represented) some other client who might also have an interest in some of the same topics or matters?" 

If the answer is "yes" or even "maybe," then that will, at a minimum, oblige us to disclose fully the circumstances to the victim family, in which event the conversation might go like this: 

"Before you make a final decision on whether or not to hire us, Mr. & Mrs. Tearful, you need to know that four years ago, one of my partners in our firm's Detroit office represented a limited partnership whose majority interest was indirectly owned by a minor Saudi prince.  The case involved a slip-and-fall accident at a shopping mall owned by the limited partnership.  The case was settled out of court, and our firm hasn't represented him or any other Saudi princes since then, and we don't expect to in the future.  Nor does there seem to be any connection between the facts of that case — which involved split transmission fluid in the parking lot — and anything that could have led up to the tragedy of 9/11 that has so devastated your family.  We don't believe this past representation of the Saudi prince will affect our motivation if you do hire us to sue the Saudi government and royal family now, but our judgment on that subject could possibly be colored by our prior relationship.  You may want to get a second opinion before deciding on whether to hire us, in fact.  But if you decide that this isn't really any big deal and you'd still like us to be your lawyers, then we will need to include in our engagement letter a special paragraph for you to initial.  It will simply confirm in writing that we disclosed all this to you in advance, that you were aware of the theoretical potential that our past representation of the Saudi prince could, arguably, affect our future representation of your family; and that after a full, unpressured discussion and careful, independent consideration by you, you made a decision to waive that potential conflict of interest and to hire us despite it."

In this hypothetical situation, there would be no ethical impediment to my firm representing this family, if they made a well-informed decision after full disclosure that they wanted to waive any potential conflict of interest.  Nor, I submit, would there be anything objectionable to this independently of the canons of ethics — and I suspect Mr. Meredith & Professor Reynolds would agree, based on this particular hypothetical set of facts.

Of course, if you change the input you may change the output; different hypothetical facts might lead to a different result:

Mr. & Mrs. Tearful, thank you for coming in today.  Since our initial telephone call last week, I've done some checking, and I've learned — to my surprise and dismay — that one of my partners in our Washington office currently represents a man named Mohammed Mohammed ala Ishtar.  I don't know any of the details of that case, but apparently Mr. ala Ishtar is being held in detention in Guantanamo Bay, Cuba, after being apprehended in Iraq by our military forces there.  He's a Saudi national, the cousin of a minor prince in the Saudi royal family in fact, and he's expected to be charged on multiple counts of terrorism, including participation in a money-laundering scheme of some sort.  To represent him effectively, my partner in Washington may have to take positions in court about the relevant law — and maybe even the relevant facts — that would be inconsistent with the positions which would need to be taken by good lawyers representing people in your position.  So I'm afraid that our firm has to disqualify ourselves from further discussions about possibly representing your family on its claims from the 9/11 tragedy, Mr. & Mrs. Tearful.  You need lawyers who can represent you without any additional baggage, and try as we might, for this case we just can't be that kind of lawyers for you.  I'm very sorry, and I hope you'll understand."

On this different set of hypothetical facts, the conflict is probably still a "potential" one — we don't know for sure yet that Mr. ala Ishtar's case will end up being directly connected to Mr. & Mrs. Tearful's case — but I submit that an ethical lawyer would simply bow out without further ado (as in the conversation above), without even suggesting that Mr. & Mrs. Tearful consider hiring him with a waiver.  (Mr. ala Ishtar would also have to be consulted about a waiver, of course, which seems rather unlikely, even after a bullying "hard sale" that would end up invalidating the waiver.)

What Mr. Meredith and Professor Reynolds are pointing to here, though, doesn't resemble either of the hypothetical sets of facts I've proposed.  There's no suggestion that the loyalties of any lawyers representing 9/11 victims are being compromised here.  As best we know from the facts Mr. Meredith reports, those victims are being aggressively represented by independent lawyers — lawyers who aren't simultaneously trying to carry baggage for the Saudis, the US government, or anyone else with a stake in sorting out the 9/11 aftermath.

No, with one extremely remote exception (about which I'll say more at the end of this post), if there's anyone with standing to complain about a conflict of interest on the facts described by Mr. Meredith, it's either (a) the Saudis, or (b) the American public at large.  So let's look at those possibilities separately.

"Ah, Sheik Abdulla!  Welcome back to America, sir!  Can my secretary get you some sweetened tea?  No?  Very well, the first item on our agenda this morning is the new lawsuit you've asked us to handle on behalf of yourself and the royal family, the class action brought against you by families of victims killed on 9/11 in the aircrash on the Pentagon.  You're probably already aware, your Highness, that one of my partners at this firm was appointed last year by President Bush to be on an official comm— ... Oh, heh, of course, I'm sorry, forgive me for telling you what you clearly already knew.  Well, just as a formality, sir, I need for you to have your correspondence secretary execute this side-letter to our standing engagement letter, to confirm that you were advised of the theoretical possibility that, eheheh, for instance, my partner might have to sign on eventually to some report from the Commission that is less than 100 percent flattering to the House of Saud....  Eh-heh, no, I'm not expecting that either, sir, but you know, it's at least— ... Oh, no sir, my office was swept for bugs just yesterday, as usual!"

Short and sweet:  If the Saudis are at risk of being embarrassed or undercut or sold down the river by the lawyers Mr. Meredith points to, they're big boys, they are capable of evaluating that risk, and they're perfectly entitled to waive any conflicts of interest.  I think Mr. Meredith & Professor Reynolds would agree with this, too — they're not shedding tears for the Saudis, as I understand them.  (And frankly neither am I.)

No, the potential victims of any possible conflict of interest here aren't the 9/11 families or the Saudis.  If there's a potential victim, it's the public at large — in the sense that all of us are "clients," ultimately, of the Commission.  The specific concern must go something like this: 

Jamie Gorelick, formerly of the Clinton Justice Department but now a partner in the firm of Wilmer, Cutler & Pickering, is imputed by law to share in the representation of all of Wilmer, Cutler's clients, including their Saudi clients — regardless of whether she's personally knowledgeable about or involved in those matters.  As a partner, she shares (albeit if only by a fractional percentage point) in the profits that Wilmer, Cutler has earned and will earn from representing the Saudis.  Therefore, we must be concerned that she is biased in favor of the Saudis, that all her input into the Commission is going to be tainted, and that the Commission's final product will thereby be compromised.

Well, yeah.  That could happen, I guess.  I've never met Ms. Gorelick, wouldn't know her from Eve.  But I see from her résumé that she's also on the board of Schlumberger, which is an oilfield services company — oh my gawd, a French company at that!  I expect that Schlumberger probably has actual or potential contracts in Saudi Arabia or Iraq, too.  Might be some theoretical conflict that could arise from that relationship which would affect Ms. Gorelick's bona fides.  Now it's getting juicy, yeah.  Let's see here, she's also a "former winner of the American Jewish Committee’s Judge Learned Hand Award."  Hmm, that practically is the same as sleeping with Sharon, isn't it?  Now how's that cut in this quagmire?  OMG, she's been President of the DC Bar Association!?!  That's like the Inside-the-Beltway Lawyer Protection Association, we know without a doubt she's willing to sell her grandmother's soul to pad the fees of every shyster north of the Potomac!  Et cetera, et cetera.

Actually ... That's a pretty impressive résumé, looked at objectively.  I mean, she's probably a Democrat and a liberal, so she and I probably wouldn't get all gushy-friendly if we were parked next to each other at a dinner party, but — those are really good credentials, even for a high-powered shop like Wilmer, Cutler.  I think it's time for another chat:

Thanks for coming out to the ranch today, pawdner!  Helicopter ride okay?  John Q, I've been meaning to ask you & Mrs. Public out here for some time now.  Before we get our fingers all messy with the ribs they're bringing in now, though, let's talk for a minute about this 9/11 Commission I'm putting together...  Yes, you're right, we all want to get to the bottom of this mess, and I'm staking my Presidency on doing that as part of the overall War on Terrorism.  Now, when we were chattin' on the phone last week, I was tellin' you about this gal I've been thinkin' about addin' to the party — Gorelick?  Izzat her name?  Anyway, this gal has a batting average that A-Rod would die for.  Mover, shaker, and baker, baby.  She's flat-out connected.  Democratic-connected mostly, but we need to make this Commission bipartificial, doncha think?  There's one little problem, though.  Point oh-oh-six of her law firm's revenues this year is gonna come from the Saudis— ... Yes, I know, but there just aren't enough firms like ol' Lloyd Cutler's to keep every foreign satrap well represented.  And anyway, of that point oh-oh-six, something like eight-fifteenths of one percent of this Gorelick gal's income for next year can be traced back to the Sauds— ... Yup, I know that's still enough money to buy Rangers season tickets, but in the scheme of things, it's chump change for a gal like this, she's got more than that rattling around in her glovebox to pay tolls on the turnpike.  Now I think it's in the national interest for this Commission to not be full of no-names if we want the world to pay attention to what it comes up with, if anything — and the members need to be sharp folks with clout, folks who know how to dig skeletons out of closets, ya know.  So do I have your permission to waive this-here potential 'conflict of interest'?  Do we take this gal or whut?  Pass the sauce, please."

If I'm Mr. Public, I agree to waive this potential conflict of interest in the proverbial New York minute and get back to my ribs and cole slaw.

It's not like Ms. Gorelick has been made Sole Terrorism Czar; there are some other pretty high-powered folks looking over her shoulder.  Yes, there's some marginal, theoretical risk that even a lawyer with this background and these credentials will deliberately throw her ethics down the toilet and sell out her country to please one of her partner's clients.  It's slightly more likely that she'll be influenced on an innocent and subconscious level, and maybe that's a little bit troublesome.  Eh.  De minimus non curat lex.  (Roughly translated:  The Law don't sweat the small stuff.)

Friends and neighbors, I no more believe that there's a meaningful conflict of interest here than I believe that Gulf War II was all about Dick Cheney getting some contracts to put out oilwell fires for his old company after he'd divested all his options.  I'm not a fan of commissions in general, but I take on faith, and I indeed hope, that Ms. Gorelick and this Commission have gotten and will get meaningful cooperation from the government agencies they've dealt with.  More:  I pray this Commission's end product helps us avoid future disasters.  But I'm pretty sure that for them to have a fighting chance to do so, they're going to have to rely on people like Ms. Gorelick.   

Find me a lawyer in Washington who's absolutely pure, unencumbered by all conceivable potential conflicts of interest, remotely as well-qualified by education and experience as Ms. Gorelick, and beyond all plausible attacks by the conspiracy theorists, and I'll eat Dubya's sweaty Rangers baseball cap.  You're more likely to find a unicorn in Lafayette Park.

***

Final few footnotes (you can stop reading here unless you're really wonky):

(1) I'm not an expert on the subspecialty of legal ethics as they apply to government lawyers, but I tend to doubt they apply to volunteer (non-staff, that is) lawyer-members of ad hoc Presidential commissions like this one.  If I'm wrong, then in the immortal words of Emily Litella, "Never mind."

(2) Full disclosure:  As a very young lawyer, I too once represented Schlumberger from time to time.  I recall hearing of a colleague who, when appearing on its behalf in a rural East Texas courthouse, had the questionable judgment to correct the local judge's mispronunciation of our client's name:  "It's 'SLUM-ber-zhay,' Your Honor."  This tickled the judge, who immediately called a lunch recess so that, as he explained, he could go to the coffee shop across the street to "order up a ham-ber-zhay and fries."

(3) More disclosure: I interviewed for a summer job with Wilmer & Pickering (Lloyd Cutler was then at the White House with Jimmy Carter) in the fall of 1978 when I was a law student.  They liked me, I liked them, and they offered me a summer job, but I decided to work in other cities that summer and never applied there for a permanent job.  From everything I know of them, as a firm, their ethics are sparkling.  I will guaran-damn-tee you that their own internal conflicts checking methods are state-of-the-art because they see these kinds of issues daily.  They probably have an in-house committee that's considered this exact question, and/or they have hired some law school professor who specializes in ethics for a backup opinion.  I happen to think they're good folks, but even their worst enemies wouldn't accuse them of being casual or stupid about ethics.

(4) The aforementioned exception regarding whether victim families have standing to complain:  For purposes of being rigorously ethical, we have to "impute knowledge" aggressively.  That is, we have to presume that everything Ms. Gorelick's partners and associates know or learn from the Saudis, she also knows and has learned.  Everything she knows and learns as a member of the Commission, we likewise have to assume she'll tell to her partners and associates who are working directly with the Saudis, and we further have to assume that those partners and associates will spill their guts to their Saudi clients.  If the Saudis indirectly and prematurely learned through Ms. Gorelick's participation in the Commission of some fabulous, incredible "smoking gun" piece of evidence, the early knowledge of which affected what they did or refrained from doing in the lawsuits brought against them by 9/11 victims, then arguably those victims would be disadvantaged by the courts permitting their opponents, the Saudis, to continue with Wilmer, Cutler as their counsel.  I've seen motions to disqualify filed on slimmer grounds.  But they usually are, and should be, denied — the indisputable prejudice to the defendant from losing counsel of its choosing is held to outweigh this remote and theoretical risk.  I'll also bet Wilmer, Cutler has a "Chinese wall" in place — policies designed to prevent Ms. Gorelick's files on her Commission work, for instance, from being accidentally made available to the other WC&P lawyers who are actively working on the Saudi matters, and forbidding them from talking with each other about those cases.  We're into "angels on the head of a pin" territory here.