This post is one I do not want to write, and the fact that I have to write it is profoundly depressing. It requires me to criticize, indeed blow the whistle on, professional colleagues in the fields of law and ethics, some of whom I know and admired very much, as well as fellow members of the District of Columbia Bar. Some of these colleagues are also members, like I am, in a distinguished association dedicated to the field of legal ethics. A superb book on the topic by one of the professors involved sits in a prominent place in my office bookshelf. I can see it right now.
Yesterday evening, I learned that a group of fifteen law professors and lawyers have filed a professional misconduct complaint against White House Counselor Kellyanne Conway, claiming that she violated the Rules of Professional Conduct for attorneys by giving false statements to the media. The fifteen signed the complaint, which was filed with the D.C. Bar’s Office of Disciplinary Counsel. When I read the names, signed on a statement printed upon the official stationery of Abbe Smith, a distinguished full time professor at my alma mater, (and where I worked in the administration for four years), Georgetown University Law Center, my heart sank. While I did not need to read the whole complaint to know it was contrived and intellectually dishonest nonsense, I did, and it fulfilled my worst fears. The anti-President Trump hysteria that has caused so many previously fair and rational citizens on the Left to behave atrociously and to betray their previously held values has officially infected lawyers in the legal ethics field. They are now riding the rails on the 2016 Post Election Ethics Train Wreck.
To be absolutely clear and unambiguous: the complaint is a political attack, and a cheap shot at the President of the United States through his staff. There is no merit to any of its contentions.
The professors claim that they were “compelled” to file the complaint because D.C. Rule of Professional Conduct 8.3 (a) requires that
“A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority.”
They are either addled by partisan political animus or lying, because there is no way, no way, these fifteen professors could know that, or even validly conclude it, based on what they have written in the complaint. To call their accusations against Conway a stretch is to be too kind. They are forced, exaggerated, trivial and manufactured. From what I have read in past commentary and opinions of several of them regarding other matters of lawyer misconduct, I have serious doubts about whether they believe them. I know that’s a serious charge, but I see no other explanation, other than temporary insanity.
To begin with, Kellyanne Conway is not working in a legal position in Trump’s White House. She is Counselor to the President, not White House Counsel. The President and Conway may choose, for his protection, to treat her non-legal policy advisor position as a legal representation, but the fact remains that she is not providing legal advice and services, only policy-related ones. Now, lawyers can violate D.C. Rule of Professional Conduct 8.4, Misconduct, while not engaged in the practice of law, but unless the conduct involved is criminal or displays “moral turpitude” sufficient to call into question the lawyer’s fitness to practice the likelihood of the conduct being regarded as sanctionable by the Bar is vanishingly slim.
From everything I can determines, Conway, though she is a member of the New Jersey Bar and an inactive (she needs to pay back dues and take my mandatory D.C. Bar ethics course before she can practice) member of the District Bar, has not practiced law in more than 20 years. She has been a pollster, an activist, a flack and TV personality as well as candidate Trump’s campaign manager, but none of her professional profiles refer to her as a lawyer. The complaint alleges that Conway “engage(d) in conduct involving dishonesty, fraud, deceit, or misrepresentation” in breach of D.C. Rule of Professional Conduct 8.4 (c), and did so while not engaged in the practice of law. In order to bring down the wrath of the Bar, such conduct must be extremely serious, criminal or bordering on it. Rule 8.3 “limits the reporting obligation to those offenses that a self–regulating profession must vigorously endeavor to prevent.” What kind of non-law-related “offenses” must “a self–regulating profession…vigorously endeavor to prevent”? It is well established that questionable statements that an individual with a law license utters in the course of political activity and advocacy is not such conduct.
In other words, politicians who are lawyers are not held to the same standards of truthfulness and candor as lawyers are when they practice law. Elsewhere in the Rules, “puffery” is specifically exempted from discipline, though puffery is just another word for exaggerating or fibbing in negotiation. No politician has ever been disciplined by a bar for campaign lies. No elected officer has been sanctioned for dishonest statements in office. None of the fifteen law professors filed a complaint against Hillary Clinton when she said on national TV that James Comey had backed all of her representations about her e-mails. They didn’t even file a complaint upon learning that Clinton had violated a signed pledge promising that her foundation would not seek or accept contributions by foreign governments, and violating sworn pledges, by a lawyer, is per se “moral turpitude.”
When Barack Obama lied repeatedly about how the act dubbed “Obamacare” would allow citizens to keep their health care plans and doctors if they wanted to, none of these professors filed complaints. When Bill Clinton said, “I did not have sex with that women, Miss Lewinsky,” that was not deemed sufficient to compel a complaint to D. C. Bar Counsel. So what was Conway’s dire offense that mandated, they claim, this letter?
You won’t believe it. I couldn’t believe it. These professors are putting their reputations on the line, and have nothing to allege beyond these…
1. Conway referred to a “Bowling Green Massacre” while discussing the President’s executive order temporarily restricting travel from seven Muslim countries. This was an obvious gaffe, in which Conway conflated an incident involving two aspiring Iraqi terrorists with a non-existent “massacre.” “Ms. Conway knew there was no massacre,” the letter alleges. Yes, and Barack Obama knew there were 50 states, not 57. No lawyer, in D.C. or elsewhere, has ever faced discipline for an ambiguous episode like this. It would make no sense for Conway (who is by all evidence no idiot) to claim that an incident occurred that did not, when the fact could be and would be easily checked I assumed it was a brain-cramp, and only those whose confirmation bias imposes the worst interpretation of anything Trump-related would not do the same.
Law professors are supposed to be capable of avoiding confirmation bias.
2. Conway made a false statement when she said that President Obama banned Iraqis from the United States after the so-called massacre.The complaint points out that there was no formal ban on Iraqis, only an order of enhanced screening. Yet the professors’ letter similarly keeps referring to Trump’s “travel ban,” which is also inaccurate. Conway’s poor choice of words is called “sloppy discourse in TV interviews.” It is not what Rule 8.4 describes as “dishonesty, fraud, deceit, or misrepresentation,” and every one of these professors know it.
3. Conway claimed that “alternative facts” supported the Trump administration’s claims regarding the size of the President’s inauguration crowd. The complaint says, “‘Alternative facts’ are not facts at all; they are lies.” Are you embarrassed for these professors yet? I am. Conway, if you think she was acting as Trump’s lawyer (I don’t) was engaging in desperate spinning for her client that by the normal standards of the profession was neither unusual nor discipline-worthy. If she was just being a flack, which is my assessment, she engaged in incompetent flacking. It was another gaffe, that’s all. Moreover, while using “alternative facts” may be lying (though not the kind of lying by lawyers in a political setting and while not acting as a lawyer, that attorneys have ever been disciplined for) saying that a conclusion has been based on “alternative facts” is not lying. It is no different than saying that the crowd estimate was based on bad facts. “Alternative facts” is a really dumb euphemism.
And that’s it! This are the evidence the professors give the bar for the ridiculous contention that Conway engaged in “offenses that a self–regulating profession must vigorously endeavor to prevent,” compelling the complaint.
That is more of a lie than anything Conway has said.
Moreover, as D.C. Bar counsel explained in an article for “Washington Lawyer,” a complaining lawyer must have actual knowledge of a violation of the rules by the other lawyer:
“The duty to report misconduct by another lawyer arises only when the reporting lawyer has “actual knowledge” of the misconduct, a very high standard. Thus, for example, a lawyer’s strong suspicions of wrongdoing by another lawyer, or even the presence of some evidence of an ethical violation by the other lawyer, does not create a Rule 8.3 duty to report.”
None of the lawyers can possibly know whether Conway was lying when she used the words “massacre,” or called the Obama order a “ban,” or when she referred to “alternative facts.” Only Conway knows it they were flubs, mistakes, bad choices of words or intentional deceptions.
The signatories seem to know that have little or nothing. “We are mindful of the Rule’s breadth and aware that disciplinary proceedings under this Rule could lead to mischief and worse. Generally speaking, we do not believe that lawyers should face discipline under this Rule for public or private dishonesty or misrepresentations,” they admit early in the letter. However, they say,
“… we believe that lawyers in public office—Ms. Conway is Counselor to the President—have a higher obligation to avoid conduct involving dishonesty, fraud, deceit, or misrepresentation than other lawyers. Although the DC Rules contain no Comment specifically relating to 8.4(c), the American Bar Association’s Model Rules of Professional Conduct (MR) make this point. MR 8.4(c), Comment 7 states that “Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers.”
This is, as anyone familiar with the D.C. bar would know, laughable and disingenuous. D.C.’s legal ethics rules vary from the ABA’s advisory, non-binding Model Rules as much or more than any jurisdiction in the country. If the ABA’s language isn’t included in the D.C. Rules, that’s because the members don’t want it there. The signatories to the complaint can “believe” whatever they want, but the ABA language is 100% irrelevant to a D.C. bar ethics complaint.
Moreover, I just saw the compilation of the practice areas of the hundreds of lawyers disciplined by the D.C. Disciplinary Counsel in 2016. The number of government lawyers was minuscule. The number of lawyers serving in non-legal government jobs, like Conway, who were disciplined?
Finally and desperately, the professors charged that Conway “misused her position” when she promoted Ivanka Trump‘s brand on television from the White House, but they admitted that this did not necessarily violate the attorney ethics rules. And it doesn’t.
“We do not file this complaint lightly,” the professors ( they are also beclowning their respective law schools, including Georgetown, Yale, Fordham, and Duke ) write. “We believe that, at one time, Ms. Conway, understood her ethical responsibilities as a lawyer and abided by them. But she is currently acting in a way that brings shame upon the legal profession.” No, these professors are bring shame on their profession. (And how could Conway bring shame on the legal profession while not practicing law and when almost nobody knew she was a lawyer?)
I wouldn’t file an ethics complaint against these 15 unethical professors, though their conduct while not engaging in the practice of law is far worse than what they allege of Conway. I don’t believe it calls into question their fitness to practice law. It calls into question their fairness, judgement, and willingness to abuse their positions, however. Their basis for the complaint is minimal. Their arguments are inflated and disingenuous. Their motives are unprofessional, and obvious.
They want to embarrass Conway, thus wounding the President. If that was not the goal, they would not have released the complaint to the journalists, who, unlike me, for example, don’t know enough about the substance to see it as the blatantly political attack that it is. Complaints to the bar are virtually always made without fanfare, and the bar investigates and settles the issues raised without publicity, unless discipline is warranted. I am not involved in bar discipline, and cannot speak for the lawyers who are, although I know most of them.
I can and will say that I will be stunned if their reaction to this disgraceful abuse of the Bar’s function, the disciplinary process and the Rules themselves differs from mine in any way.
Source: Washington Post