A recent blog post asks whether William Burck of Quinn Emanuel can ethically represent Steve Bannon, Reince Priebus, and Don McGahn in connection with the Mueller investigation. The blog post identifies a number of important issues, but the analysis is incomplete. Although Burck’s representation appears to create a conflict under Rule 1.7(a), Burck could continue the representation under Rule 1.7(b) if he “reasonably believes that [he] will be able to provide competent and diligent representation to each” and each client provides informed consent. While the public does not — in my view — know sufficient facts to determine whether Burck can reasonably represent all three clients, a complicating factor is that McGahn appears to be giving Burck and Bannon direction as to whether executive privilege applies to Bannon’s testimony.
Did Jeff Sessions violate Rule 1.11 if he participated in the decision to fire Jim Comey? The Rule 1.11 issue depends on whether the firing implicated Comey’s investigation of the Russian connection to the Trump campaign. If so, does Sessions’s participation in the campaign and/or personal contacts with the Russians require him to withdraw under Rule 1.11? See, for example, this column on Sessions and the Comey firing.
Richard Emery, a name partner in a well-known New York City law firm, is also Chairman of New York City’s Civilian Complaint Review Board, which investigates complaints against police officers. The New York Daily News reports that the City’s Conflict of Interest Board permitted him to “keep his name on the firm’s shingle, and [granted him] a ‘waiver’ allowing his firm to represent plaintiffs in lawsuits against the City.” A spokesman for the CCRB added that “Mr. Emery recuses himself from any matters in which the firm represents a party associated with the CCRB,” but the Daily News reports that “[n]either the Conflicts Board, nor Emery, would provide a copy of the waiver.” Although the Board may have been applying government ethics law, Emery’s recusal from matters involving his firm would appear to satisfy Rule 1.11 (d). Similarly, his law firm’s representation of plaintiffs who formerly had matters before the CCRB would appear to satisfy Rule 1.11 (a)(2) so long as “the appropriate government agency gives its informed consent, confirmed in writing,” as happened here. Note that the language of the Rule 1.11 refers to former government officers but the comment expressly includes current government officers with regard to former matters. In addition, even without consent, Rule 1.11(b) would permit the representation so long as Emery is timely screened, and the agency receives timely notice.
Judge Jesse Furman of the Southern District of New York recently refused to permit a plaintiff in a civil rights action from substituting a new lawyer on the ground that the lawyer was barred under Rule 1.11. Furman found that lawyer “participated personally and substantially as a public officer” (Rule 1.11) in investigating plaintiff’s bias complaints when lawyer was Senior Director for Equal Employment Opportunity — not a lawyer position — at plaintiff’s employer agency.
The New York Times describes how the practice of providing of medical advice, including the prescription of medicine, through the internet is expanding, and at the same time meeting resistance from some doctors. Although law firms already provide advice to businesses and wealthy individuals through video communication, could internet video calls become a common way for lawyers to meet, and provide services to, middle income clients and small businesses? These developments raise issues relating to creation of the lawyer-client relationship, competence/malpractice, confidentiality, conflicts, and future directions for business and technology of legal practice.
A Womens Donor Network Study reported in the New York Times finds that “Sixty-six percent of states that elect prosecutors have no blacks in those offices, . . . 95 percent of the 2,437 elected state and local prosecutors across the country in 2014 were white, and 79 percent were white men.” At the same time, “white men make up 31 percent of the population of the United States.” This study is relevant to a number of topics in the course, including the responsibility of lawyers for ensuring that the legal system provides equal justice for all and the special duties of prosecutors.