Clinton Aides Agree To Be Represented By The Same Lawyer In Answering Questions On Email Scandal

Hillary_Clinton_Testimony_to_House_Select_Committee_on_BenghaziThere 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].

Representation Conditionally Prohibited – Rule 1.7(b)
[7] Paragraphs (b) and (c) are based upon two principles: (1) that a client is entitled to wholehearted and zealous representation of its interests, and (2) that the client as well as the lawyer must have the opportunity to judge and be satisfied that such representation can be provided. Consistent with these principles, paragraph (b) provides a general description of the types of circumstances in which representation is improper in the absence of informed consent. The underlying premise is that disclosure and informed consent are required before assuming a representation if there is any reason to doubt the lawyer’s ability to provide wholehearted and zealous representation of a client or if a client might reasonably consider the representation of its interests to be adversely affected by the lawyer’s assumption of the other representation in question. Although the lawyer must be satisfied that the representation can be wholeheartedly and zealously undertaken, if an objective observer would have any reasonable doubt on that issue, the client has a right to disclosure of all relevant considerations and the opportunity to be the judge of its own interests.
[8] A client may, on occasion, adopt unreasonable positions with respect to having the lawyer who is representing that client also represent other parties. Such an unreasonable position may be based on an aversion to the other parties being represented by a lawyer, or on some philosophical or ideological ground having no foundation in the Rules regarding representation of conflicting interests. Whatever difficulties may be presented for the lawyer in such circumstances as a matter of client relations, the unreasonable positions taken by a client do not fall within the circumstances requiring notification and informed consent. Clients have broad discretion to terminate their representation by a lawyer and that discretion may generally be exercised on unreasonable as well as reasonable grounds.
[9] If the lawyer determines or can foresee that an issue with respect to the application of paragraph (b) exists, the only prudent course is for the lawyer to make disclosure, pursuant to paragraph (c), to each affected client and enable each to determine whether in its judgment the representation at issue is likely to affect its interests adversely.
[10] Paragraph (b) does not purport to state a uniform rule applicable to cases in which two clients may be adverse to each other in a matter in which neither is represented by the lawyer or in a situation in which two or more clients may be direct business competitors. The matter in which two clients are adverse may be so unrelated or insignificant as to have no possible effect upon a lawyer’s ability to represent both in other matters. The fact that two clients are business competitors, standing alone, is usually not a bar to simultaneous representation. Thus, in a matter involving a specific party or parties, paragraphs (b)(1) and (c) require notice and informed consent if the lawyer will take a position on behalf of one client adverse to another client even though the lawyer represents the latter client only on an unrelated position or in an unrelated matter. Paragraphs (b)(2), (3), (4) and (c) require disclosure and informed consent in any situation in which the lawyer’s representation of a client may be adversely affected by representation of another client or by any of the factors specified in paragraph (b)(4)

57 thoughts on “Clinton Aides Agree To Be Represented By The Same Lawyer In Answering Questions On Email Scandal”

  1. Squeek and bam, I worked several years for the prosecutors office in KC. I can only remember maybe 2 times the same attorney represented co defendants. Both involved only 2 clients and the judge required specific assurances of no conflict.

  2. @Texan

    Unlike Hillary and Bill, there aren’t lists of individuals, with whom I was once associated–either personally or financially– who have died under mysterious and questionable circumstances. That’s a fact. If you enjoy researching stories, research the number of people once associated with the Clintons who are no more. Bizarre, strange and untimely deaths. Deaths of Clinton associates, ruled as suicides, where the bullets entered the backs of the respective heads of the victims. Evil? You have no idea.

  3. The big issue here is that this is a CRIMINAL matter. In Texas,

    Such conflicts can arise in criminal cases as well as civil. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one co-defendant.

    https://www.legalethicstexas.com/Ethics-Resources/Rules/Texas-Disciplinary-Rules-of-Professional-Conduct/I–CLIENT-LAWYER-RELATIONSHIP/1-06-Conflict-of-Interest–General-Rule.aspx

    Squeeky Fromm
    Girl Reporter

  4. @bam bam

    I went ahead and did my own investigating. I found it by way of reddit.com where neckbeards live, the fedoras are plenty, and women are flattered by the words of “m’lady” and a strange but socially awkward phenomenon called Le Reddit Armee residing within its deeper abysses.

    And yes, Hillary Clinton, Bill Clinton, you, anyone else, even me, are fully capable of doing evil. The only thing that separates the good from evildoers is that the good carries within themselves the integrity, character, and the principles by which they live or die, free or slave.

    @Darren if they stole the WH’s china, artifacts, and chairs, why isn’t there a federal prosecution in the works to make sure the stuff came back? After all, it really doesn’t belong to the Clintons. It belongs to the WH.

  5. Hillary obviously has a lot of drag. I’m guessing threats were made. We are ruled by mobsters.

  6. Remember, the Clintons were broke when they left the White House. That is why they had to steal the White House’s china, artifacts, and chairs to furnish their new mansion.

  7. steveg:

    If something does come out at trial that is a serious conflict, would anything detrimental happen to the attorney besides the requirement that she excuse herself as one of their lawyers?

    1. Karen writes, “If something does come out at trial that is a serious conflict, would anything detrimental happen to the attorney besides the requirement that she excuse herself as one of their lawyers?”

      First, I think the informed written consent exception exists because a bright line rule may prevent needed multiple representation in various other areas of the law. For instance, in preparing a family trust between spouses or when spouses sue retirement-plan administrators or others and each spouse has a similar or equal interest, multiple representation can be a prerequisite, and no potential conflicts exist. But in criminal law?

      What happens to the attorney on a “serious conflict” (really, any conflict pitting clients against each other is serious) depends on whether the writing on which the client relies informed him or her fully of the conflict and the client consents anyway, at least in this State. Frankly, it’s hard for me to believe anyone would consent in a criminal case unless a verdict one way or the other was highly probable at the time of consent and it saved attorney fees and there wasn’t much left to lose by going along with this strategy.

      If the client was not fully informed before consenting to multiple representation, think of the potential circumstance where the attorney must pick a sacrificial lamb between the four clients (in other words, how does one choose between clients and their crimes if it comes to that?), the malpractice liability for incarceration for failure to fully inform, chances of a mistrial or delay to retain new counsel on an unforeseen conflict, let alone discipline from the state bar for one of the most glaring ethical improprieties imaginable. It’s not like conflicting representation isn’t drilled into every attorney’s head before and after passing the bar exam.

      For example, as Prof. Turley alluded to, what if Client A (the one with immunity) honestly testifies that Client B and C destroyed sensitive documents that were known by all to be classified or that Hillary told Client D to say nothing to the FBI when interviewed or there are facts which are disputed between the clients and they become hostile toward each other and the once streamlined theory of the case breaks into four pieces? What if their attorney advises Client D to remain silent and not testify to the most incriminating evidence in the trial, even though the attorney knows the tactic will mean sacrificing Clients B and C because only Client D has personal knowledge of their complete innocence?

      That’s why I think it would be very difficult (perhaps the right word is insane?) to represent two different litigants together (let alone four) in a criminal case, even if the attorney thinks she knows every fact in the case before obtaining consent to represent more than one client. Certainly each of the four witnesses should seek independent counsel to advise as to the propriety of multiple representation.

      Take what I’ve written with a grain of salt. I’m certainly not an ethics expert who’s researched various cases and has a better sense of the penalties meted out for multiple representation in criminal cases. What’s more, Prof. Turley is a respected criminal defense attorney, and he stated Ms. Wilkinson knows what she’s doing, so you won’t see me arguing against that.

      It’ll be interesting to see how this plays out. This isn’t just a “vast right-wing conspiracy.” I’m a lefty. She’s already admitted to part of the crime in that it was a “mistake,” and she was briefed on the law as indicated in an earlier thread on this blog. I’d be more than happy to see Hillary charged and convicted for something that the little guy would see a stint in Club Fed for.

  8. Anyone financially associated with the Clintons should be treated with suspicion.

  9. Texan @ 5:55 pm

    Lol! The source? A friend emailed it to me–purportedly, it’s a joke. The mere fact that you asked for the source, believing Hillary to be capable of such evil, speaks volumes.

  10. There is a lesson to be learned in government from all this email vs. snail mail mess. Do not use emails for anything. Go back to telegraph code. Use a diplomatic pouch. So you lose a few days while the pouch is flying somewhere. Do not talk on phone about confidential stuff either. Do not live within the Beltway. Eat fried chicken not Shake N Bake. Ride on a sailboat with a tiller not a wheel. Do not drive a VW. Do not marry a Bill. Do not hire a Monica. Do not move to Arkansas. Do not vote Democrat or Republican. If you don’t vote it won’t count and you can not be wrong. Live free or die. Move to New Hampshire.

  11. One day, Hillary appears before some children at an elementary school to speak to them and to answer questions.

    One little boy raises his hand, and Hillary asks him his name. He replies with “Kenney” and then proceeds to state that he has three questions to ask her:

    What happened in Benghazi?

    How she could expect to be elected President of the US if she didn’t even comprehend the risks involved with her emails?

    AND. . .

    What happened to the billions of dollars that were found to be missing during her reign as Secretary of State?

    The recess bell rings, and she assures them that they will continue, once again, after the break.

    The children gather around, once more, after the break. This time, a different boy raises his hand. Once again, Hillary asks him his name. He replies that his name in “Johnny” and proceeds to inform her that he has five questions to ask her:

    What happened in Benghazi?

    How she could expect to be elected President of the US if she didn’t even comprehend the risks involved with her emails?

    What happened to the billions of dollars that were found to be missing during her reign as Secretary of State?

    Why did the recess bell ring twenty minutes early?

    AND. . .

    WHAT THE HELL HAPPENED TO KENNEY?

  12. Nick writes, “Steve, You and I are on the same page, the same paragraph, about the Clinton’s.”

    Amen, brother. I’m tired of that self-serving tag team.

  13. Karen writes, “Wouldn’t she just need their written consent if there were conflicts of interest?” INFORMED written consent is much different than written consent. It means being fully informed and voluntarily consenting. Ms. Wilkinson would have to lay out on paper what potential or actual conflicts there are and make sure that the client understands those conflicts before giving consent. I think hat’s a very difficult task for an attorney to do without potential repercussion because of the factual ::ahem:: known unknowns.

    And that’s on top of the attorney’s worst nightmare that something will come out of the witness’s mouth in the witness chair, especially with one of her four clients having immunity, that the attorney had no knowledge of before trial.

    Risky stuff, but she’s probably being paid bundles, enough to take on that risk and the effort to inform the clients appropriately before getting consent. And she wouldn’t be there if she weren’t a very experienced trial attorney.

  14. RogerJ, From everything I’ve read about Comey, he is the real deal. He actually believes in right and wrong, integrity, etc. He is quite are in DC

  15. Steve, You and I are on the same page, the same paragraph, about the Clinton’s.

  16. This is a criminal investigation. I thought every word spoken in the interrogation room is positively confidential, and to disclose any aspect of the interrogation outside the room is a potential felony for “conspiracy” and/or “obstruction of justice.” IOW, disclosing the interrogation informs the target (Hillary and all other potential targets, who are the persons in the room) what specific evidence to burn, or who’s image to forward for a nail gun, heart attack, vehicle accident, or strange execution in a Starbucks (the last item happened to three Clinton associates from their Arkansas crime era, before they went national).

    One counsel for four potential criminal targets in one potential conspiracy positively prohibits confidentiality, and the article hides this fact.

    What am I missing?

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