At legbranch.com, the website of the Legislative Branch Capacity Working Group, I have a post regarding the House Judiciary Committee staffers who allegedly worked on the Trump travel/immigration executive order during the transition.
According to this Legal Times piece, Dickstein Shapiro has a problem with the House Committee on Oversight and Government Reform. Does it also have a legal ethics problem? The Legal Times relates:
Before beginning to question the five witnesses, committee chair Darrell Issa (R-Calif.) paused to criticize a Dickstein employee’s activities prior to the hearing. The employee—who was not identified, except as a female member of the firm’s lobbying group—“made multiple contacts to committee members and specifically asked them not to ask you questions,” Issa said.
Issa produced a copy of what he termed “a disturbing” email, with the sender’s name blacked out. It read: “If possible, please do not direct questions to Jonathan Silver…He’s a client of my firm. :)”
Issa said, “From the committee’s standpoint, the question is whether to refer this to the bar association, whether it’s an interference with Congress, which I find it to be.”
Rule 3.9 of the D.C. Bar Rules of Professional Conduct provides that “a lawyer representing a client before a legislative or administrative body in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3, 3.4(a) through (c), and 3.5.” The comments state that “[a] lawyer appearing before such a body should deal with it honestly and in conformity with applicable rules of procedure,” and “legislatures and administrative agencies have a right to expect lawyers to deal with them as they deal with courts.”
Rule 3.5(a) provides that a lawyer shall not “seek to influence a judge, juror, prospective juror, or other official by means prohibited by law.”
Rule 3.5(b) prohibits ex parte communications “during the proceeding unless authorized to do so by law or court order.”
Finally, Rule 3.5(d) prohibits a lawyer from “engag[ing] in conduct intended to disrupt any proceeding of a tribunal, including a deposition.”
Exactly how these provisions apply in the context of a congressional proceeding is a question that Bar Counsel has probably never faced before. In fact, my impression (confirmed by Jack Marshall at a recent seminar) is that even most legal ethics experts have never heard of Rule 3.9. But if the Dickstein employee is a member of the D.C. bar, or is supervised by a member of the D.C. bar responsible for her conduct, there would seem to be some serious ethics questions raised.
At the June 28 meeting of the House Committee on Oversight and Government Reform, a question arose about the role of House Counsel in providing legal advice to COGR and its members. Chairman Issa had requested and received a House Counsel opinion on whether Lois Lerner waived her Fifth Amendment privilege by making an exculpatory opening statement at a prior COGR hearing. Issa took the position that this opinion was attorney-client privileged. Although he shared the opinion with Ranking Member Cummings prior to the June 28 meeting, he had asked Cummings to limit distribution of the document to prevent public disclosure.
Specifically, Issa requested that Cummings not distribute the opinion to “all of your members,” presumably because he feared that such wide distribution would inevitably lead to its being leaked. Committee Democrats protested that every member of COGR had an equal right to the opinion because House Counsel is charged with representing the House as a whole. Issa countered that each member of COGR was free to obtain his or her own opinion from House Counsel. He maintained, however, that this opinion was given to the committee majority and had been shared with the minority only as a “courtesy.”
This debate reflects some confusion about the function of House Counsel. It may also reflect the fact that the role of congressional lawyers in general, and House Counsel in particular, is, as the law professors like to say, “under-theorized.” (Which, admittedly, is a bit like your State Farm agent saying you are “under-insured”). As I noted a few years ago:
House Rule II(8), which establishes OHC [the Office of House Counsel], provides that the office exists,
for the purpose of providing legal assistance and representation to the House. Legal assistance and representation shall be provided without regard to political affiliation. The Office of General Counsel shall function pursuant to the direction of the Speaker, who shall consult with a Bipartisan Legal Advisory Group, which shall include the majority and minority leaderships.
This language, which constitutes essentially all of the legal authority defining the scope of the OHC’s functions and obligations, provides only limited guidance as to the OHC’s ethical responsibilities. It could be read to suggest that OHC’s responsibilities run primarily, if not exclusively, to the House as an institution, rather than to individual members or offices. On the other hand, it requires that OHC provide assistance and representation without regard to political affiliation, a directive that seems unintelligible except in the context of providing advice or representation to particular members. Finally, it implies that questions about the OHC’s responsibilities, including issues relating to the House’s institutional legal interests and positions, are to be resolved by the Speaker of the House after consultation with the Bipartisan Legal Advisory Group (BLAG).
Michael L. Stern, Ethical Obligations of Congressional Lawyers, 63 NYU Ann. Survey of Am. L. 191, 199 (2007).
As mentioned in my last post, D.C. Bar Legal Ethics Opinion No. 358 amplifies the 1977 opinion in a couple ways that are of interest. First, the Legal Ethics Committee (LEC) states that a prosecutor holds “a position akin to counsel for an investigative congressional committee” for purposes of the legal ethics rules. Although the 1977 opinion partly relied on decisions that prohibited prosecutors from requiring witnesses to assert the Fifth before a grand jury, it did not generally equate the positions of prosector and committee counsel.
One can only imagine how lawyers for clients investigated by congressional committees might use this language. For example, Rule 3.8(a) of the DC Bar Rules of Professional Conduct states that a prosecutor shall not “in exercising discretion to investigate or to prosecute, improperly favor or invidiously discriminate against any person.” Could this provision be used to file a complaint against a committee counsel who investigates wrongdoing solely when it is associated with the other political party (or, conversely, opposes investigations against persons associated with his own political party)?
Rule 3.8(f) also sharply limits the prosecutor’s ability to make extrajudicial statements prejudicial to the accused. The LEC specifically cites Comment 2 to Rule 3.8, which states that “a prosecutor should use special care to avoid publicity, such as through televised press conferences, which would unnecessarily heighten condemnation of the accused.” The logic of this position would not seem to be limited to requiring witnesses to take the Fifth in an open hearing, but could apply to any negative or prejudicial comments regarding persons who are subject to congressional investigation.
Opinion No. 358 also provides some guidance on the types of conduct that might cause a lawyer to violate the ethical rules. Committee lawyers, of course, do not have the power to issue subpoenas or to decide whether hearings should be closed. These powers belong to the committee (or, in some cases, to the chairman). The LEC suggests, however, that a staff lawyer might be guilty of “assisting another in violating the rules.” It is not clear exactly what that means, but one could infer that committee lawyers have some sort of duty to refuse to assist the committee in activities that would violate the rules.
The LEC also notes that “[i]n addition to participation in the hearing itself, such related activities as preparing subpoenas also could subject a lawyer to sanctions, although we note that Rule 5.2 protects a subordinate lawyer who acts as the direction of a supervising attorney so long as there a reasonable argument that calling the witness is permitted by the Rules.”
How would this work in the congressional context? Suppose, for example, a committee chair directs counsel to prepare a subpoena for a witness. Can the counsel rely on this instruction as a defense? Probably not, if the chair is not a lawyer (or a member of the DC bar). What about the House General Counsel’s office, which reviews all subpoenas under House practice? Can the committee counsel rely on the General Counsel’s determination as to whether the subpoena is permitted under the DC Bar ethics rules? Perhaps, but the House Counsel is not a “supervising attorney” of the committee lawyer. The House Counsel, however, may need to ensure that the subpoena complies with the legal ethics rules, to avoid a potential charge that he or she has “assisted” the committee in violating those rules.
Opinion No. 358 may open up an interesting can of worms on the Hill.
In 1977, the Legal Ethics Committee (LEC) of the D.C. Bar, interpreting the Code of Professional Responsibility (the predecessor to the Rules of Professional Conduct), opined that an attorney serving as counsel to a congressional committee was prohibited by the disciplinary rules from requiring a witness to appear at televised hearings when the committee had been notified in advance that the witness would refuse to answer questions based on the Fifth Amendment right against self-incrimination. See Michael Stern, Ethical Obligations of Congressional Lawyers, 63 N.Y.U. Annual Survey of American Law 191, 192, 207-08 (2007).
This opinion has long caused consternation among congressional committees and their lawyers. Among the objections to it: (1) there are legitimate reasons why a committee may wish to call a witness to testify notwithstanding an indication that he or she will assert the privilege against self-incrimination; (2) the D.C. Bar has no authority to regulate the proceedings of congressional committees; and (3) the decision of whether or not to subpoena a witness, or to close a hearing, belongs to the committee, not to staff lawyers.
The LEC has now issued Opinion No. 358 (Jan. 2011), which responds to a request to vacate the 1977 opinion. (Although the source of the request is not identified, I believe it was former House Counsel Irv Nathan). The LEC analyzes the issue under the current rules and concludes that there is no basis to vacate the prior opinion. In doing so, however, it both qualifies and perhaps extends the reach of the opinion in notable ways.
Opinion No. 358 acknowledges, as did the 1977 opinion, that the LEC’s “jurisdiction is confined to rendering opinions on the applicability of the ethics rules to the conduct of staff attorneys acting in their capacities as attorneys.” Thus, the opinion presumably does not apply to Members of Congress, even though many are lawyers and some may be members of the D.C. Bar.
Nevertheless, the LEC reiterates that a committee staff lawyer may violate the ethical rules if he or she participates in calling a witness who has asserted an intention to plead the Fifth. According to Opinion No. 358, such conduct potentially violates Rule 4.4(a), which states that “a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person,” and Rule 8.4(d), which prohibits a lawyer from “engag[ing] in conduct that seriously interferes with the administration of justice.”
According to Opinion No. 358, the rules are not violated simply by the fact that a witness who intends to assert the Fifth is subpoenaed to do so in an open hearing. Instead, a violation occurs only if the sole purpose of calling the witness is to degrade or harass. The opinion implicitly acknowledges that there are circumstances in which this is not the sole purpose of calling the witness to appear in public, although it does not provide much guidance on what those circumstances may be.
This is a significant qualification to the 1977 opinion, which has generally been understood to hold that it is per se improper to require a witness to appear in a public hearing if he or she has stated an intention to plead the Fifth. Thus, while Opinion No. 358 purports to reaffirm the 1977 opinion, it arguably makes it more difficult for a witness to use it as a basis for refusing to appear (the LEC expressly declines to opine on whether it is ever appropriate for a witness to invoke the opinion as a basis for refusing to comply with a congressional subpoena).
On the other hand, there are aspects of Opinion No. 358 which could raise new problems for congressional lawyers. I will discuss those in my next post.