More On The Unethical Sally Yates: Her Conflict Of Interest Deception

...and you shouldn't have accepted the job, either.

…and you shouldn’t have accepted the job, either.

Here is another ethics aspect of the disgraceful Sally Yates episode that the complicit news media isn’t covering: it was unethical for her to accept the job of acting Attorney General in the first place.

She had an apparent conflict of interest when she was offered the job. This is indisputable; it’s just being ignored by fawning partisans. Here is the applicable ethics rule of Yates’ bar and jurisdiction:

Rule 1.7–Conflict of Interest: General Rule

(a) A lawyer shall not advance two or more adverse positions in the same matter.

(b) Except as permitted by paragraph (c) below, a lawyer shall not represent a client with respect to a matter if:

(1) That matter involves a specific party or parties and a position to be taken by that client in that matter is adverse to a position taken or to be taken by another client in the same matter even though that client is unrepresented or represented by a different lawyer;

(2) Such representation will be or is likely to be adversely affected by representation of another client;

(3) Representation of another client will be or is likely to be adversely affected by such representation;

(4) The lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer’s responsibilities to or interests in a third party or the lawyer’s own financial, business, property, or personal interests.

(c) A lawyer may represent a client with respect to a matter in the circumstances described in paragraph (b) above if

(1) Each potentially affected client provides informed consent to such representation after full disclosure of the existence and nature of the possible conflict and the possible adverse consequences of such representation; and

(2) The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.

(d) If a conflict not reasonably foreseeable at the outset of representation arises under paragraph (b)(1) after the representation commences, and is not waived under paragraph (c), a lawyer need not withdraw from any representation unless the conflict also arises under paragraphs (b)(2), (b)(3), or (b)(4).

President Trump displayed his trust in Yates’ professionalism and loyalty to the United States when he offered her the job of acting as the  Attorney General  until his designated choice for the job, Senator Jeff Sessions, was confirmed by the Senate. Yates  had a disqualifying conflict under 1.7 b 4 above, a personal conflict caused by her pre-existing loyalties and personal interests in furthering the agenda of the Democratic party and her own partisan goals.

She was bound by the ethics of her profession to inform Trump of that conflict, a serious and disqualifying one, so he could knowingly waive it (or choose another acting AG). If he did knowingly waive her conflicts, counting on her professionalism and ethics, Yates still could not ethically accept the representation without sincerely believing that her personal interests and loyalty to third parties—like the Democratic Party and the declared foes of the Trump Administration—would not affect her judgment to the detriment of her client. She could not have sincerely believed that, as demonstrated by the fact that the very first time she was called upon to act in her client’s interest, she defaulted to her loyalty to those third parties and personal biases.

This is as blatant an example of a lawyer intentionally ignoring a conflict of interest and deceiving a client about her ability to fulfill a representation zealously and loyally as I have ever seen or heard about.

Any news report on the Yates episode that does not emphasize her intentional breach of her ethical duties is biased, incompetent, or intentionally misinforming the public.

22 thoughts on “More On The Unethical Sally Yates: Her Conflict Of Interest Deception

  1. Interesting argument. Would this apply to any previous AG who continues serving into the presidency of their old boss’s opposition party? So for instance, if we get a Democrat in 2020 and they choose to keep Jeff Sessions on until their replacement is confirmed, does he have a conflict of interest and a duty to resign? Or is it just Yates’ conduct here that proves she had a conflict of interest?

    • 1) He’s trying to get confirmed 2) The EO was already pronounced lawful through channels at Justice. 3) That determination means that by definition, Yates could not say it was unequivocally unlawful. And again, her obligation was to resign after making her case, not obstruct her client.
      4) There’s no guarantee that sessions is familiar with the Ethics rules, either. The odds say he’s not. For one thing, they have been heavily revised since he last practiced law.

      • 1) He wasn’t trying to get confirmed at the time; this was Yates’ confirmation hearing.
        2) I’m not sure what this means. Who “pronounced” this order lawful? Until the SC ruling on this–and there will be one, I’m sure–we can’t say.
        3) I don’t think she could say it was “unequivocally” lawful, but that’s not what she said; she said she was not convinced it was lawful. But I take your point that professional obligations mean she wasn’t allowed to say that.
        4) True.

  2. …She was bound by the ethics of her profession to inform Trump of that conflict…

    The issue is she was NOT bound by ethics at all. She stayed on as an insider, a spy, and a traitor to the USA. Democrats saw this as on opportunity, IMHO, to go out with a grand standing blaze of glory, knowing that somebody will hire her as a ‘hero’ even if she got disbarred. This has been repeated time and again, and not just by Democrats, although they have been the most frequent flyers in the past.

    This behavior is being watched by those who have decided principle is second place (or fifth place, for that matter) to winning at any cost, just to “shut those blessed liberal liars up.” Now that the Democrats have done this, tit-for-tat is open season for the future.

      • Principle would have mandated she resign. In the Nixon analogy that so many are quick to make, both Richardson and his deputy resigned before firing cox. That is the honorable thing to do.

  3. Yates was not White House Counsel; her client was not the President, but the United States. You completely ignore the rules applicable to government lawyers, including Rule 1.13 relating to organizational clients. For example: “If a lawyer for an organization knows that an officer, employee, or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation, or a violation of law which reasonably might be imputed to the organization, and is likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the best interest of the organization.” You also ignore Rule 1.6(e)(2): “A lawyer may use or reveal client confidences or secrets . . . if a government lawyer, when permitted or authorized by law.”

    • I did not say Trump was her client. Her client is the US, and Trump, though you may not want to admit it, is the elected leader of that government. His was not a personal action.

      I am not ignoring any rule; I teach those rules almost every day. I also cited 1.13, which in DC, does not allow a lawyer to go public with such concerns. I notice you didn’t quote the whole rule—slimy! Here it is, taking off from your dishonest and misleading redaction:

      ….Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances, to the highest authority that can act on behalf of the organization as determined by applicable law.

      That’s POTUS. Not the press, not the public.

      Your 1.6 reference is flat-out absurd, Where’s the law that authorizes an AG’s public political opinion defying an EO? There isn’t one.

      Let me know—I’ll comp you into one of my legal ethics seminars. 3 credits! You need them, obviously.

      • “The Attorney General is responsible for the objective and evenhanded
        administration of justice independent of political considerations or
        pressures. . . . The Constitution requires the President, and thus the Attorney General, to execute the laws faithfully. It requires them to follow the law, even if that course conflicts with policy.” 1 Op. OLC 232. The basis of your entire position is that a conflict between the AG and the President is an attorney-client conflict. There is no support for that. “The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all. . . .” Berger v. US, 295 U.S. 78, 88 (1935). Surely that applies to the AG as well. It’s clear from Yates’s statement that she believed the EO was not legally defensible, and while she could have conveyed this message privately, under the circumstances – where individual government officials were apparently defying binding federal court orders, either out of the chaos of the moment or willfulness, and where she would have to communicate this view to a large number of government officials – it was not inappropriate to state that publicly.

        As to Rule 1.13, there is no suggestion in the rule that the only means of addressing this issue is to bring it to superiors within the organization. The commentary to Rule 1.13 clarifies that it does not override the confidentiality requirements of Rule 1.6, but I don’t read you to be suggesting that Yates disclosed any client confidences anyway. As for authorities for the powers of the AG – 28 USC 516-18, 28 USC 521, all bear on this. But in the absence of a client confidence, statutory authority is not needed for the AG to speak her mind publicly.

        • DC’s 1.13, which is the one that applies, not the ABA version, says exactly that she has no option, other than to resign if she goes up the ladder and fails to change anything. Moreover, her statement undermined any suggestion that she “knew” the order was illegal. First of all, lawyers seldom “know,” and in a case like this, where she had already received an official opinion to the contrary (from Justice!), she can’t possibly “know.” All she can have is an opinion, and her opinion is not sufficient to allow her to refuse to represent her client.

          Second, she went on to state why the EO was unwise. That’s not her call to make, and the fact that she offered it shows that she didn’t know it was illegal. If it’s illegal, whether it’s wise or not is irrelevant. If it’s illegal, even if she loves the idea, she has to argue for reversing it, but as long as it’s the law, her job requires her to defend it, or resign.

          It’s not even close ethically.

          • If it’s not even close, report her to the bar as you are required to do as a member, and we’ll see how it turns out.

            You say at the same time that it could be “illegal” and “the law.” That’s not the case. If an EO is illegal, it’s NOT the law.

            Where do you get the notion that the AG is obligated to defend governmental action that she believes is unconstitutional? The oath we take as lawyers – and the oath of office for federal employees – pledges us to defend the Constitution. If the point is arguable, Rule 5.2(b) allows us to argue a position we believe is wrong if a superior lawyer directs it. But the President is not a supervisory lawyer to the AG. The situation might be different if the AG commanded a DOJ employee to take a position that the employee believed was unconstitutional, as long as the position was arguable under the meaning of Rule 5.2(b). But Rule 5.2(a) clearly indicates that, if a lawyer believes that the action is clearly unconstitutional, “just following orders” is not a defense.

            Again you say she “refused to represent her client.” But you haven’t shown any authority that suggests that the President is her client. That would be an extremely dangerous view for the administration of justice. Normally, lawyers don’t investigate their clients, so where would that leave DOJ investigations into executive branch misconduct?

            Additionally, you say that she should not have gone to the press or the public. It’s not clear that she did. The NYT said that her letter went to senior DOJ officials; other news outlets said the letter leaked.

            Finally, you say that she didn’t say the EO was illegal. I read her letter to say that, but in a more gentle fashion because she actually didn’t want to emphasize how much she was calling out the President. She said she wasn’t convinced that it was lawful, and that she was concerned about statements by the administration and its surrogates that might bear on its purpose – a veiled reference to the President’s own enthusiasm for a “Muslim ban” and Giuliani’s admission that he consulted on how to turn such an illegal project into something that might pass muster.

            You still have offered zero support for the notion that a conflict between the AG and President is an attorney-client conflict. It is not.

            • 1. I have.
              2. Now you are just foundering. Of course, the EO is legal, and almost no legitimate and objective Comstituional scholar believes otherwise. Even the stays, which were political, do not state the the Eo is illegal. They were, I believe unjustified and political, but they merely hold that the EO should deal with legal challenges before being implemented.

              3. “Again you say she “refused to represent her client.” But you haven’t shown any authority that suggests that the President is her client.”

              That’s it: I’m through with you, at this point.
              I addressed that already twice. Now you are trolling. Read the post, and read the previous responses. I never said that she represented the President. He speaks for the government within his Constitutional powers, when he issues an EO. Now you are trolling.

              I don’t ask much, but I do ask that if you choose to debate the an issue, respond to my statements, don’t keep repeating contentions that I have already dealt with. That’s trolling.

              You’re off this thread. See you on another, where presumably you will behave better, or not at all. Your choice.

              • By the way, “how it turns out” proves nothing. All bars hesitate to discipline government lawyers except for slam dunk illegal conduct. If you knew anything about legal ethics and discipline, you’d know that. The hesitation goes double when anything political is involved. I assume that there is virtually no chance that she will be disciplined.

  4. A now banned attempted commenter wrote,

    “Now you are trolling.”

    Swing and a miss. Nothing that Marco Simons has said is “trolling” – you’re simply labelling it as such so you have an excuse to ban him from commenting in order to silence dissenting opinion.

    There’s a lesson in ethics here but I’m not sure it’s one you’d be able to grasp.

    My reply:

    Wrong, and I have explained this in the comments policies. Simply repeating the same argument over and over again without addressing counter arguments is not appreciated nor permitted. Marco kept repeating that the AG is not the President’s counsel, despite the fact that I never said she was, my post wasn’t based on claiming she was, and that I had explained that this was irrelevant TWICE.

    I do not look for excuses to ban those who disagree with me. They ban themselves. I would like as much enlightened debate here as possible. Meanwhile, you made your first comment by insulting me in my area of expertise, and also didn’t have the courtesy to present a real name and a real e-mail address, as clearly required. [ Jrjowodnrj, writing at ] So I’ll publish this as an example of why jerks like you get banned, but you have never gotten out of moderation, so no further garbage of yours will see the light of day. Bye.

    And then I have to ask—why does anyone think they can enter the discussion here by insulting me? How stupid can you get?

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