Yesterday counsel for the Trump Organization wrote to the House Judiciary Committee alleging that the committee’s special oversight counsel, Barry H. Berke, “is ethically conflicted from representing or advising the Committee on any matters pertaining to the Company, and to respectfully demand that the Committee cease and desist from all investigative or other activities adverse to the Company.” My initial reaction from media reports was that this was a frivolous claim. After reading the actual letter, however, the issue turns out to be a bit more complicated.
To be clear, the demand that the Judiciary committee cease all investigations or other activities adverse to the Trump Organization is ridiculous. Even assuming Berke is personally conflicted (which, as discussed below, he may be), there is no basis for arguing this conflict somehow disables the committee from performing its legislative and investigative functions.
The Trump Organization analogizes this to a situation where a law firm is disqualified from representing a client in court, but it would be more analogous to prohibiting the client itself from participating in the litigation. The company’s letter cites nothing in the rules of professional conduct to suggest that a government agency or entity can be barred from conducting the public business simply because it hired a lawyer with a conflict. To the contrary, state bars have recognized that such interference would be improper. Thus, for example, DC Legal Ethics Opinion 308 notes that the normal rules of imputed disqualification do not apply to government agencies “[d]ue to the draconian effects of imputed disqualification on the ability of the government to obtain legal services.” Furthermore, even if the bar rules could be read to permit such a draconian result, there would be serious constitutional objections to any attempt by the bar to regulate the operations of Congress in this fashion. See Michael L. Stern, Ethical Obligations of Congressional Lawyers, 63 NYU Ann. Survey of Am. L. 191, 208 & n. 59 (2007).
With regard to Berke himself, there would not have been an ethical problem had he simply left his prior law firm (Kramer Levin) and joined the staff of the Judiciary committee. Although Kramer Levin apparently has had a longstanding attorney-client relationship with the Trump Organization, there is no allegation that its representation has involved matters that are the same as or substantially related to matters that Berke may be handling at the Judiciary committee. In addition, it is not claimed that Berke himself was involved in representing the Trump Organization. Therefore, under ordinary circumstances, he would be free to participate in the committee’s investigation of the company.
However, Berke did not join the committee as an ordinary staffer. Instead, according to the committee’s press release earlier this month, he was “retained on a consulting basis as special oversight counsel to the Majority Staff, advising the Committee’s Oversight Counsel team on a range of issues.” Although his law firm is not being paid for the time he is spending on committee business, he remains at least nominally as a partner in Kramer Levin. The Trump Organization plausibly argues that this arrangement violates bar rules prohibiting a lawyer from handling matters adverse to an existing client (the Trump Organization maintains that it is an existing client of Kramer Levin, though there may be some factual dispute about that).
In addition to this question of professional ethics, it is not clear to me that this arrangement has been adequately scrutinized under House rules. It is true that committees sometimes retain outside counsel for purposes such as conducting discrete investigations (usually involving internal ethical misconduct), providing specialized legal advice or litigating a particular case. The arrangement with Berke, however, looks more like someone who fulfilling the role of a regular staffer but being exempted from the normal restrictions on outside activities and income. Perhaps it is perfectly ok (it was approved by the Committee on House Administration), but someone ought to take a closer look. The Office of Congressional Ethics, for example.