The Kavanaugh Hearing Leaves Lingering Questions Over Representations Made To The Committee By Counsel

Yesterday’s Kavanaugh hearing left many questions on both sides, including the ultimate question of the alleged attempted rape of Dr. Christine Blasey Ford.  However, for lawyers, one exchange sticks out from a professional standpoint.  Ford was questioned why she delayed the hearing due to her alleged fear of flying and, more importantly, why she did not simply meet with committee staff in California.  Ford admitted that, while she does not like to fly, she does in fact routinely fly around the world, including frequent trips to nearby Delaware.  The most striking statement however was the suggestion that she was never told by counsel that she did not have to fly to Washington and the Committee was ready to fly to her — a prospect that she said she would have welcomed.  That left a lingering question of whether her counsel did not tell her of a material offer or whether she misrepresented the reason for her delay in speaking to the Committee.

Senate Judiciary Committee Chair Chuck Grassley (R-Iowa) challenged Ford when she said

“I was hoping that they come to me. But, then, I realized that that was an unrealistic request. . . . So, that was certainly what I was hoping – was to avoid having to get on an airplane – but, I eventually was able to get up the gumption, with the help of some friends, and get on the plane.”

Chairman Grassley immediately raised the conflict with what the Committee had been told by her counsel on her behalf:

“Dr. Ford, I want to correct the record, but it’s not something that I’m saying that you stated wrongly, because you may not know the fact that, when you said that you did not think that it was possible for us to go to California as a committee, or investigators to go to California to talk to you – we did, in fact, offer that to you. And, we had the capability of doing it, and we would have done it, anywhere or any time.”

That offer was made on Sept. 21st and it was sent to Ford’s lawyers.

That offer was widely reported in the national media so it was curious why Ford was unaware of the offer, but it was in direct conflict with what the Committee understood from her counsel.  However, there was an objection from counsel when she asked whether it “was communicated to you by your counsel or someone else that the committee had asked to interview you, and that they offered to come out to California to do so?”

Ford responded

“Can I say something to you? Do you mind if I say something to you directly? I just appreciate that you did offer that. I wasn’t clear on what the offer was. If you were going to come out to see me, I would have happily hosted you and been happy to speak with you out there. I just did not — it was not clear to me that that was the case.”

It was not explained how an offer to fly to her in California was not “clear.”  Counsel was required to convey and explain such material offers to Ford in order to represent her position in good faith.  The D.C. bar rules state:

Rules of Professional Conduct: Rule 1.4–Communication

   (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
(c) A lawyer who receives an offer of settlement in a civil case or proffered plea bargain in a criminal case shall inform the client promptly of the substance of the communication.

That rule puts counsel in a difficult place. Michael Bromwich, Debra Katz and Lisa Banks indicated that they are working pro bono but blocked queries as to whether the offer of the Committee was clearly conveyed to their client.  That objection was made despite their effectively telling the Committee that their client would not accept the offer.  The situation is particularly precarious for counsel after Ford admitted that she was given the pro bono counsel at the suggestion and referral of Dianne Feinstein.  That can create concerns over the representational lines, though Katz is a respected litigator and has always fought vigorously for her clients in this area.

The most likely scenario is that Ford was told. Certainly a case can be made for her counsel that she watched coverage making the offer clear, even if she did not get clarity from counsel.  This conflict would ordinarily trigger probing questions over the basis of past representations. However, there was a clear decision not to press Ford on such conflicts due to the bad optics even when using a female prosecutor as a buffer between the witness and the all-male GOP senators.


393 thoughts on “The Kavanaugh Hearing Leaves Lingering Questions Over Representations Made To The Committee By Counsel”

  1. It certainly looks as if her counsel violated the Rules of Professional Conduct. I would like to see it pursued, but it won’t be. Somebody on her side appears to be lying, though.

    The Democrats may have made a significant error in going so far over the top attacking this candidate who, after all, is only replacing a swing justice.

    The fight they will really want to win is if someone is chosen to replace Ginsburg or ‘The Wise Latina’ who has health problems. Now they have sacrificed their credibility and shredded the illusion that they have morals or decency.

    Next time around there will be greater skepticism about anything they (or the media) say and they may face Republicans who will want different rules and will act as if they finally found their backbones.

    The Democrats used all of their ammo fighting the lesser battle. D-Day is still coming.

  2. Why the Brett Kavanaugh Smear?
    Posted: 28 Sep 2018 10:36 PM PDT
    (John Hinderaker)
    One question I have pondered over the last few weeks is, why are the Democrats so determined to block Judge Brett Kavanaugh’s nomination to the Supreme Court? Realistically, he is the most moderate nominee they are likely to see from the Trump administration. If his nomination fails, the president will most likely appoint Amy Barrett, who is secure against #MeToo allegations and is both more conservative and younger than Kavanaugh. So what is the point?

    To some extent, the Democrats’ bizarre smear campaign against Kavanaugh is explicable on short-term political grounds. The Democrats’ crazed base demands that they #Resist, so resist they will, whether it does any good or not. But I think there is something deeper and more sinister at work.

    Brett Kavanaugh enjoys one of the most spotless reputations of anyone in American public life. He has been enthusiastically endorsed by those who have known him all his life–by girls he knew in high school and college, by judges he has served with, by professors and students and Harvard and Yale law schools, by judges who have worked with him, by his judicial clerks–most of whom have been women–by the American Bar Association, by sitting Supreme Court justices. In short, everyone who has ever known or dealt with Brett Kavanaugh endorses him.

    I think that Judge Kavanaugh’s pristine reputation is one reason why the Democrats have unleashed against him a smear campaign unparalleled in American history. This is the message they are trying to send: If we can do this to the Boy Scout Brett Kavanaugh, we can do it to anyone. Are you thinking of serving in a Republican administration? Or accepting an appointment to the federal judiciary from a Republican president? Think twice, and then think again.

    Because our smear machine will reach back to middle school if necessary. If we can’t find any dirt on you, we will manufacture some. There is no depth to which we will not stoop, and your honesty, integrity and spotless reputation are no match for our control over the media and our determination to dredge up ridiculous allegations against anyone who stands in our way.

    Really, the more ridiculous the better. If we can accuse Brett Kavanaugh, one of the most respected lawyers and judges in America, of gang rape, we can accuse anyone of anything! And our insane accusations will dominate the news.

    That is the Democratic Party’s message. And we have learned from the Christine Ford fiasco that accusations don’t require corroborating evidence. A single wacky, false allegation will negate decades of hard work on behalf of the American people.

    By smearing the ultimate Boy Scout, the Democrats signal that they are determined to go lower than anyone has ever gone in American history. They intend to deter normal people from serving in Republican administrations, or accepting appointments from Republican presidents, or, ultimately, from identifying themselves with the Republican party. Given that strategy, the fact that they are smearing a man of obviously sterling character on absurdly flimsy grounds is not a bug, it is a feature. The fact that the Democrats’ smears are so patently false is ultimately their main point.

    The Democrats are telling us: Republicans, beware–if this can happen to Brett Kavanaugh, it can happen to anyone. You’d better go quietly and cede power to us.

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