There is an interesting development in the Clinton email scandal. The investigation has entered a particularly dangerous stage for Clinton with a key aide receiving immunity and interviews scheduled for key associates. The danger is that statements given prosecutors can differ and contradict each other or, worse yet, contradict Clinton. Moreover, such statements could be unknown to Clinton when she speaks with investigators. For that reason, many are likely to view a recent announcement with considerable suspicion that the top four staff members to Clinton have agreed to be represented by the same attorney, Beth Wilkinson. That would allow a degree of coordination or at least confirmation of differing statements or accounts. Since Wilkinson is not allowed to represent multiple clients with conflicts, it would also create a situation where the statements must not conflict in significant ways between the clients and, if they do, she would likely have to remove herself — a move that would likely be known to the Clinton counsel and highlight a potential problem with a given associate. She will represent former Chief of Staff Cheryl Mills, Deputy Chief Jake Sullivan, Mills’ deputy Heather Samuelson, and Clinton spokesman Philippe Reines.

Wilkinson is a top lawyer with close contacts at the Justice Department. She is a logical choice, particularly if you believe that the FBI may push for charges and the only fail-safe would be a refusal by the Justice Department to prosecute.

The joint representation is an extremely important development, which is likely to reassure Clinton’s personal counsel. It is however a curious choice for the individual clients in an investigation that covers a large number of emails and actions over a long period of time. They could have serious potential conflicts of interest in the mishandling of classified evidence or the circumvention of security protocols and rules. There is little reason why all four would prefer the same counsel unless they wanted to present a uniform account. Generally, it is clearly to a person’s advantage to have a single lawyer who is solely and exclusively pursuing your own interest. Moreover, there is little question that the Clinton campaign would prefer key witnesses to be represented jointly. The danger is a “prisoner’s dilemma” scenario where witnesses are unclear what other witnesses might be saying. The concern is that, even if Wilkinson does not share such statements between clients, she would be there to object or potentially steer clients away from conflicting or dangerous departures.

This is not to take away from Wilkinson who is a very accomplished lawyer who prosecuted Oklahoma City bomber Timothy McVeigh and former Panama dictator Manuel Noriega. She has the experience to foresee the types of dangers that lurk in such interviews, though she is not unique in that sense in this city with a wide array of such experienced counsel.

The most problematic in a joint representation is Sullivan who has repeatedly come up in reports on the circumvention of the secure State department email system and various classified email. Mills is also someone who I believe would be best served with individual counsel. Sullivan and Mills also represent two of the greatest potential threats to Clinton. Samuelson also has some potential liability as the alleged person who sorted through the emails to decide what to delete, including emails now deemed classified.

None of this is meant to suggest any unethical by Wilkinson who has a stellar reputation and can clearly represent all four absent a known conflict or potential conflict in interest. However, such joint defenses always raise concerns over coordinated accounts and shared information. That is likely to be an issue that will be raised by the investigators in the questioning of these witnesses and potential targets.

The DC rule allows for clients to sign an understanding or waiver reflecting realities and risks of multiple clients in the same matter. The rule is below. What is problematic in this case is that this is not a civil but a criminal matter where any conflict could result in both adverse and criminal penalties. It also creates a risk for the lawyer if there are allegations raised later regarding communications or steering between witnesses.

Rules of Professional Conduct: 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).Comment[1] Rule 1.7 is intended to provide clear notice of circumstances that may constitute a conflict of interest. Rule 1.7(a) sets out the limited circumstances in which representation of conflicting interests is absolutely prohibited even with the informed consent of all involved clients. Rule 1.7(b) sets out those circumstances in which representation is barred in the absence of informed client consent. For the definition of “informed consent,” see Rule 1.0(e). The difference between Rule 1.7(a) and Rule 1.7(b) is that in the former, the lawyer is representing multiple interests in the same matter, while in the latter, the lawyer is representing a single interest, but a client of the lawyer who is represented by different counsel has an interest adverse to that advanced by the lawyer. The application of Rules 1.7(a) and 1.7(b) to specific facts must also take into consideration the principles of imputed disqualification described in Rule 1.10. Rule 1.7(c) states the procedure that must be used to obtain the client’s informed consent if representation is to commence or continue in the circumstances described in Rule 1.7(b). Rule 1.7(d) governs withdrawal in cases arising under Rule 1.7(b)(1).

Representation Absolutely Prohibited – Rule 1.7(a)
[2] Institutional interests in preserving confidence in the adversary process and in the administration of justice preclude permitting a lawyer to represent adverse positions in the same matter. For that reason, paragraph (a) prohibits such conflicting representations, with or without client consent.
[3] The same lawyer (or law firm,seeRule 1.10) should not espouse adverse positions in the same matter during the course of any type of representation, whether such adverse positions are taken on behalf of clients or on behalf of the lawyer or an association of which the lawyer is a member. On the other hand, for purposes of Rule 1.7(a), an “adverse” position does not include inconsistent or alternative positions advanced by counsel on behalf of a single client. Rule 1.7(a) is intended to codify the result reached in D.C. Bar Legal Ethics Committee Opinion 204, including the conclusion that a rulemaking whose result will be applied retroactively in pending adjudications is the same matter as the adjudications, even though treated as separate proceedings by an agency. However, if the adverse positions to be taken relate to different matters, the absolute prohibition of paragraph (a) is inapplicable, even though paragraphs (b) and (c) may apply.
[4] The absolute prohibition of paragraph (a) applies only to situations in which a lawyer would be called upon to espouse adverse positions for different clients in the same matter. It is for this reason that paragraph (a) refers to adversity with respect to a “position taken or to be taken” in a matter rather than adversity with respect to the matter or the entire representation. This approach is intended to reduce the costs of litigation in other representations where parties have common, non-adverse interests on certain issues, but have adverse (or contingently or possibly adverse) positions with respect to other issues. If, for example, a lawyer would not be required to take adverse positions in providing joint representation of two clients in the liability phase of a case, it would be permissible to undertake such a limited representation. Then, after completion of the liability phase, and upon satisfying the requirements of paragraph (c) of this rule, and of any other applicable Rules, the lawyer could represent either one of those parties as to the damages phase of the case, even though the other, represented by separate counsel as to damages, might have an adverse position as to that phase of the case. Insofar as the absolute prohibition of paragraph (a) is concerned, a lawyer may represent two parties that may be adverse to each other as to some aspects of the case so long as the same lawyer does not represent both parties with respect to those positions. Such a representation comes within paragraph (b), rather than paragraph (a), and is therefore subject to the consent provisions of paragraph (c).
[5] The ability to represent two parties who have adverse interests as to portions of a case may be limited because the lawyer obtains confidences or secrets relating to a party while jointly representing both parties in one phase of the case. In some circumstances, such confidences or secrets might be useful, against the interests of the party to whom they relate, in a subsequent part of the case. Absent the informed consent of the party whose confidences or secrets are implicated, the subsequent adverse representation is governed by the “substantial relationship” test, which is set forth in Rule 1.9.
[6] The prohibition of paragraph (a) relates only to actual conflicts of positions, not to mere formalities. For example, a lawyer is not absolutely forbidden to provide joint or simultaneous representation if the clients’ positions are only nominally but not actually adverse. Joint representation is commonly provided to incorporators of a business, to parties to a contract, in formulating estate plans for family members, and in other circumstances where the clients might be nominally adverse in some respect but have retained a lawyer to accomplish a common purpose. If no actual conflict of positions exists with respect to a matter, the absolute prohibition of paragraph (a) does not come into play. Thus, in the limited circumstances set forth in Opinion 143 of the D.C. Bar Legal Ethics Committee, this prohibition would not preclude the representation of both parties in an uncontested divorce proceeding, there being no actual conflict of positions based on the facts presented in Opinion 143. For further discussion of common representation issues, including intermediation, see Comments [14]-[18].