We previously discussed the problematic role of all of the Clinton staffers speaking with FBI being represented by the same lawyer despite potential conflicts of interest. The release of material from the FBI has revealed an even more troubling role of a Clinton lawyer. In an accommodation that would have been refused in most criminal investigations, the FBI allowed Cheryl Mills to sit in on the interview of Hillary Clinton on the email scandal even though Mills is a witness and a key figure in the scandal. The FBI still allowed her to advise a witness who could have opposing or conflicting accounts to her own prior statements. It is a dual role that is frowned upon by bar rules and would likely draw intense objections in most cases. The accommodation reinforces the view that Clinton received extraordinary accommodations by the FBI in its consideration of criminal charges.
FBI notes refer to Mills being present at the interview. Clinton was not short of counsel. She had multiple lawyers as well as State Department and Justice Department counsel involved in the investigation. I cannot imagine most agents agreeing to a material witness jumping the table to serve as counsel on the very same controversy.
Mills did not serve as counsel to Clinton at State but “counselor”, which is more of an advisor. She later did serve as her personal lawyer and dealt with the disastrous email record, including a role in the deletion of thousands of emails (many of which were later found to contain not personal but official communications). Indeed, critics have long identified Mills as the central figure in the scandal among the Clinton staff.
The role of lawyers as witnesses most often arises in trial conflicts and are covered by Rule 3.7(a) in D.C. which provides that “A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness. . . .” The D.C. Rules also contains a standard expression of the bar on conflicts of interests:
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).
It is hard to see how Mills’ personal interests are not affected by a potential criminal investigation into her role in the destruction of the emails and other potential charges.
What do you think?