From The “Bias Makes You Stupid” Files! Ethics Dunce: Legal Ethicist Steven Gillers

A depressing theme throughout the Trump years has been the corruption of various professions as members once justifiably regarded as trustworthy abandoned their ethical obligations to become “resistance” allies. The professions thus tainted include judges, scientists, doctors and health professionals, lawyers, psychiatrists, historians, teachers and professors, university administrators, and of course the worst offenders, politicians and journalists. Maybe I’ve missed a few. One more profession that has to be included on the list, I’m ashamed to say, is legal ethicists.

In a post in 2017, I discussed the disgraceful filing of a frivolous and politically motivated bar complaint against then-Trump aide Kellyanne Conway by a group of law professors, some of whom are ethics specialists, and a few of whom I knew and respected. I wrote in part,

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The Unethical, Depressing, Bar Complaint Against Kellyanne Conway

kellyanneThis 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. Continue reading