For a few days last week, former GOP congressman Trey Gowdy was the newest member of the Trump legal team in the impeachment inquiry. The arrangement fell apart, however, when Gowdy's law firm, Nelson Mullins, became concerned about that the engagement might violate the rules prohibiting former congressmen from lobbying for a year after leaving office. There was an additional problem with retaining Gowdy, however, that did not get any publicity. Another Nelson Mullins partner, Jonathan Sale, already represents Rudy Giuliani in the impeachment investigation, thus creating a classic conflict of interest.
[UPDATE: Giuliani has now discharged Jon Sale, meaning that neither of the Nelson Mullins lawyers remain on the case.]
I wrote an oped explaining the conflict, and placed it for publication, but it has now become moot. I think the conflict issue is still of interest to lawyers, so here is are the key paragraphs:
The representation of Trump and Guiliani presents a classic conflict of interest. Under the Rules of Professional Conduct in both South Carolina (where Gowdy is admitted to practice) and Washington, D.C. (where Sale is admitted), a lawyer or law firm may not concurrently represent two clients if there is a “significant risk” of a resulting limitation on their advice to one or the other.
In this case, there is a glaring risk that loyalty to Trump may overwhelm the objectivity of the Nelson Mullins lawyers, making it difficult or impossible to provide Giuliani with independent counsel. Trump, after all, is president of the United States and a domineering personality if there ever was one. If he wants Rudy to keep his mouth shut, what lawyer could easily advise Giuliani to do otherwise?
Some conflicts can be waived with the consent of both clients, but I don’t think this is one of them. Under the ethics rules, lawyers may not accept conflict waivers unless they can “provide competent and diligent representation to each affected client.” Even if Trump and Giuliani currently plan to remain united, and have given detailed written authorizations to Nelson Mullins, there is no predicting how their relationship will develop in the future. (And put aside the fact that Giuliani would have been under tremendous pressure to sign a waiver – given that Trump is his boss – making him unable to freely provide the necessary “informed consent.”)
The full never-to-be-published oped is after the jump.
So now they are after the legendary “crime buster” and greatest Mayor in the history of NYC, Rudy Giuliani. He may seem a little rough around the edges sometimes, but he is also a great guy and wonderful lawyer. Such a one sided Witch Hunt going on in USA. Deep State. Shameful!
Although Trump’s affections sometimes vanish overnight, the president has plenty of reasons for backing up his personal attorney, and not only because he enjoys watching Giuliani’s pugnacious style of defense. Rudy is under subpoena in the House of Representatives impeachment inquiry, and Trump obviously wants him to withhold compliance, even under threat of a contempt citation. Disgruntled former attorneys, however, have a way of spilling the beans – see, e.g., Cohen, Michael – so Trump’s own interest is keeping Rudy on the bus rather than under it.
But what is best for the boss is not always best for the minion. Facing a congressional subpoena, even before the criminal investigation, it made sense for Giuliani to consult his own lawyer about the consequences of stonewalling on Trump’s behalf. Savvy as he is, however, it looks like Giuliani may have ended up with the wrong attorney to advise him.
The day after he was subpoenaed by the House Intelligence Committee, Guiliani hired Jon Sale, a former Watergate prosecutor and now a partner at Nelson Mullins Riley & Scarborough. That surely seemed like a good choice until a few days ago, when Trump retained former Republican congressman Trey Gowdy, who is also a partner at Nelson Mullins. Thus, both Giuliani and Trump are now represented in the impeachment inquiry by the same law firm.
The representation of Trump and Guiliani presents a classic conflict of interest. Under the Rules of Professional Conduct in both South Carolina (where Gowdy is admitted to practice) and Washington, D.C. (where Sale is admitted), a lawyer or law firm may not concurrently represent two clients if there is a “significant risk” of a resulting limitation on their advice to one or the other.
In this case, there is a glaring risk that loyalty to Trump may overwhelm the objectivity of the Nelson Mullins lawyers, making it difficult or impossible to provide Giuliani with independent counsel. Trump, after all, is president of the United States and a domineering personality if there ever was one. If he wants Rudy to keep his mouth shut, what lawyer could easily advise Giuliani to do otherwise?
It is conceivable that Rudy might someday be better served by cutting a deal with the federal prosecutors or the House committee. If that possibility ever appears to be even somewhat plausible, a good lawyer would have to advise Giuliani without regard to Trump’s needs or preferences. In other words, Nelson Mullins could be put in the position of needing to advise one client, Giuliani, to betray another client, Trump. Alternatively, the firm could end up advising Rudy to remain loyal by rejecting a deal that offered him real benefits. Either way, one client’s disadvantage would be the other client’s gain, which is why we call it a conflict of interest in the first place.
Some conflicts can be waived with the consent of both clients, but I don’t think this is one of them. Under the ethics rules, lawyers may not accept conflict waivers unless they can “provide competent and diligent representation to each affected client.” Even if Trump and Giuliani currently plan to remain united, and have given detailed written authorizations to Nelson Mullins, there is no predicting how their relationship will develop in the future. (And put aside the fact that Giuliani would have been under tremendous pressure to sign a waiver – given that Trump is his boss – making him unable to freely provide the necessary “informed consent.”)
Trump might suddenly discover that the criminal investigation isn’t really a “witch hunt.” Rudy, on the other hand, might realize that Congress is entitled to his testimony over Trump’s objection. In either case, the Nelson Mullins lawyers would be hamstrung by their incompatible obligations to the two clients.
This is not to suggest that the Nelson Mullins lawyers would intentionally short change Giuliani or anyone else. Sale and Gowdy are experienced and capable attorneys who have never been known to mistreat or mislead a client. The ethics rules, however, are not limited to intentional misconduct. Rather, they are essential to prevent even inadvertent lapses in judgment or unintentional failures to provide fully independent advice.
It is certainly possible, indeed likely, that Guiliani will want to stick closely to Trump, but he still needs unconflicted advice to help him make the decision. It is the lawyers’ job, not the client’s, to recognize unconsentable conflicts. To put it plainly, no law firm should represent both the subject and a witness in the same investigation.
Trump may well be right that Giuliani is a “wonderful lawyer,” but in this case Rudy should realize that he needs a law firm dedicated to his own interests and nobody else’s.
If “Trump may well be right that Giuliani is a ‘wonderful lawyer,’” it may well be true that I am a world-class ballerina.
Posted by: Patrick S. O'Donnell | October 14, 2019 at 05:00 PM