Watergate: Ethics Lessons For Lawyers

by

Frank R. DeSantis Karen E. Rubin

WATERGATE: ETHICS LESSONS FOR LAWYERS

Materials for The Watergate CLE

by Frank R. DeSantis and Karen E. Rubin Thompson Hine LLP

Cleveland, Ohio

I. Introduction

In July 1970, when 31-year-old John W. Dean became counsel to President Richard Nixon, the legal ethics landscape bore little resemblance to today’s. Federal government lawyers admitted to the District of Columbia bar were under the disciplinary jurisdiction of the District Court for the District of Columbia. It was not until 1972 that the District of Columbia Court of Appeals assumed disciplinary jurisdiction, and adopted a version of the American Bar Association’s Model Code of Professional Responsibility (“Model Code”). The Model Code consisted of aspirational Canons and Ethical Considerations and normative Disciplinary Rules – a system that had its roots in the ABA’s earliest lawyer conduct code, which dated from 1908.

The professional responsibility picture for a lawyer today is quite different. In 1974, the ABA began requiring law schools to teach legal ethics, in direct response to the ethical lapses of the many lawyers involved in the Watergate scandal. The states began to mandate continuing legal education for lawyers, including an ethics or professional responsibility component. (Today, some 40 states require such continuing ethics training.) In 1991, the District of Columbia adopted its version of the ABA’s Model Rules of Professional Conduct, a revamped set of mandates that aimed to modernize and clarify lawyer conduct rules. Lawyer disciplinary authorities in almost every jurisdiction in the United States have now adopted some version of the Model Rules (although every jurisdiction has to some extent imposed its own variations). In 2001, another scandal – Enron – sparked more debate about the ethical duties of lawyers, spurring further changes to the Model Rules themselves.

With full recognition of the anachronism (since the Model Rules of Professional Conduct were unknown in the Watergate era), these materials nonetheless primarily refer to today’s Model Rules of Professional Conduct (“Model Rules”) as a way to bring the legal ethics issues presented by Watergate into a current setting.

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II. Who is the Client?

A. John Dean felt a high degree of personal loyalty to the President – but in his capacity as White House counsel, who was John Dean’s client? There are several potential answers.

1. The President as the “client”

a. Considerations of personal loyalty, and the fact that John Dean served at the pleasure of the President, might suggest that the President is the “client.”

1.) See Michael Stokes Paulsen, Hell, Handbaskets, and Government Lawyers: The Duty of Loyalty and its Limits, 61 L. & Contemp. Probs. 83, 101 (describing loyalty concerns that might influence this outlook, but rejecting validity of such a view), also available at http://www.lat.duke.edu/journals/61LCPPaulsen.

2.) See also John W. Dean, III, Watergate: What Was It?, 51 Hastings L. J. 609, 621 (Apr. 2000) (“Watergate: What Was It?”) (“There is no question that many lawyers committed illegal acts out of loyalty to Richard Nixon, and to a degree that can be said of all who did so.”).

b. Similarly, outside the government context, considerations of personal loyalty might influence outside counsel to view corporate general counsel (or one or more members of the corporate law department) as the lawyer’s “client,” rather than the corporate entity itself. Such loyalty might be based on being selected as counsel by the GC, or on having a long-time working relationship with the GC or with some other member of the law department.

2. The government agency as client

a. The District of Columbia’s version of the Model Rules provides that “The client of the government lawyer is the agency that employs the lawyer unless expressly provided to the contrary by appropriate law, regulation, or order.” D.C. Rule of Prof’l Cond. 1.6(k).

1.) As promulgated in 1983, the Model Rules included comments that particularly included government agencies within the scope of clients to which lawyers owe duties of confidentiality. In later amendments, the ABA eventually

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deleted this language as unnecessary. See Ronald D. Rotunda & John S. Dzienkowski, The Lawyer’s Deskbook on Professional Responsibility (“Lawyer’s Deskbook”), § 1.6-8 at 259 n.8 (2010-2011).

b. See also Restatement (Third) of the Law Governing Lawyers § 97 cmt. (c): “No universal definition of the client of a governmental lawyer is possible. For example, it has been asserted that government lawyers represent the public, or the public interest. However, determining what individual or individuals personify the government requires reference to the need to sustain political and organizational responsibility of governmental officials, as well as the organizational arrangements structured by law within which governmental lawyers work. …. For many purposes, the preferable approach on the question presented is to regard the respective agencies as the clients …”

c. But there is a strong contrary view. Case law that developed from the Clinton administration ethics scandals, including Whitewater, Travelgate and the Monica Lewinsky matter, held that the duty of a government attorney, as a member of executive branch, was to take care that the laws be faithfully executed, and therefore, “unlike a private practitioner, the loyalties of a government lawyer … cannot and must not lie solely with his or her client agency.” In re Bruce R. Lindsey (Grand Jury Testimony), 148 F.3d 1100, 1108 (D.C. Cir. 1998).

3. The Office of the Presidency as the “client”

a. “[I]t is clear that the relationship of White House Counsel to the Office of the President is not one of attorney for the President personally, but for the Office of the President as part of the U.S. government.” Paulsen, supra, at 99 n.36.

b. “It is, however, the entity – the United States government – and not the individual making the communication, that is the client.” Michael Stokes Paulsen, Who ‘Owns’ the Government’s Attorney-Client Privilege?, 83 Minn. L. Rev. 473, 474 (1998).

1.) This seems to be the most ethically-defensible answer, supported by decisions rejecting Clinton Administration lawyers’ attempt to invoke attorney-client privilege to shield communications between government lawyers and the President relevant to the investigation by the Office of Independent Counsel of possible criminal activity. See In

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re Bruce R. Lindsey (Grand Jury Testimony), 148 F.3d 1100 (D.C. Cir. 1998)( Deputy White House Counsel could not assert attorney-client privilege to avoid responding to grand jury if he possessed information relating to possible criminal violations in connection with Monica Lewinsky scandal); In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997) (in connection with investigation into Whitewater scandal, White House could not invoke any form of governmental attorney-client privilege to withhold potentially relevant information from grand jury).

c. See also Lawyer’s Deskbook, § 1.6-8(a) at 260 (“the government lawyer represents the government, not any official in his or her personal capacity.”).

d. See also Ronald D. Rotunda, Lips Unlocked: Attorney-Client Privilege and the Government Lawyer, 20 Legal Times 21-22, 28 (June 30, 1997); Ronald D. Rotunda, White House Counsel and the Attorney-Client Privilege, 1 Prof’l Resp., L. Ethics, & L. Ed. News 1 (Federalist Soc’y, No. 3, 1997).

4. For an examination of the “who is the client” question in connection with information leaks by government lawyers during the Bush Administration, see Kathleen Clark, Government Lawyers and Confidentiality Norms, 85 Wash. U. L. Q. 1033, 1049-55 (2007) (considering as possible clients the “public interest,” the public-at-large, the entire government, the specific agency and specific government officials).

B. The “who is the client” quandary plays out in more general terms in the corporate-attorney setting.

1. MRPC 1.13, “Organization as the client: provides: “A lawyer employed or retained by an organization represents the organization acting through its constituents. A lawyer employed or retained by an organization owes allegiance to the organization and not to any constituent or other person connected with the organization. The constituents of an organization include its owners and its duly authorized officers, directors, trustees, and employees.”

a. MRPC 1.13 was amended by the ABA House of Delegates in 2003, partly in response to the Enron scandal. The amendment instituted a “reporting up” requirement for corporate lawyers, in an attempt to ensure that lawyers would adhere to their duty of loyalty to the entity.

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1.) MRPC 1.13(b): “If a lawyer for an organization knows or reasonably should know that its constituent’s action, intended action, or refusal to act (1) violates a legal obligation to the organization, or (2) is a violation of law that reasonably might be imputed to the organization and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is necessary in the best interest of the organization. When it is necessary to enable the organization to address the matter in a timely and appropriate manner, the lawyer shall refer the matter to higher authority, including, if warranted by the circumstances, the highest authority that can act on behalf of the organization under applicable law.”

2. The Model Rules explicitly expand the reporting-up requirement to government lawyers, as well. See MRPC 1.13 cmt. [9] (“The duty defined in this rule encompasses the representation of governmental organizations.”).

3. See also Paulsen, supra, at 99 (violation of federal criminal laws by federal officials constitutes a substantial injury to the interests of the federal government; thus, under Model Rule 1.13, government lawyer with information of same required to disclose to highest authority authorized to act on behalf of the entity – “USA, Inc.”).

4. However, even without explicit reference to government lawyers, the text of the Model Rule itself plainly embodies a “reporting up” obligation for lawyers for all organizations and entities. See Lawyer’s Deskbook, § 1.13-1(b) at 566 (“Rule 1.13 is the general template for all organizations, no matter how other law characterizes them. Corporations, unions, trade associations, general and limited partnerships, government agencies – they are all ‘entities’ for purposes of the ethics rules governing the practice of law.”).

5. For a scholarly discussion of the role the federal government has adopted for itself in the regulation of the legal profession after Enron, and especially via the Sarbanes-Oxley Act, see Arnold Rochvarg, Enron, Watergate and the Regulation of the Legal Profession, 43 Washburn Law J. 61, 79 (2003).

C. Who is the client when the lawyer carries out an internal corporate investigation?

1. Internal corporate investigations raise potential conflict-of-interest issues and attorney-client privilege issues

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a. When asked to assist in conducting an internal corporate investigation on behalf of the corporation, a corporate board or a special board committee, lawyers will commonly need to interview individuals who are connected with the corporation.

b. The potential conflict of interest between the employee and the corporation, and the question of to whom the attorney-client privilege extends suggests the need for clarity in determining who the lawyer does and does not represent.

2. The problem of dual representation

a. In initial stages of investigation, lawyer might take the view that the representation is of both the company and its employee. Advantages of dual representation include: “avoid duplication of effort, enhance employee cooperation, permit a unified defense” and provide cost savings. Ashish S. Joshi, Corporate Miranda: Clarifying Lawyers’ Loyalty During an Internal Investigation, available at http://www.abanet.org/buslaw/blt/2009-09-10/joshi.shtml

b. But such dual representation is inherently problematic: “[I]t may undermine the integrity and credibility of the investigation, risk a waiver of any applicable privilege, and/or land a lawyer in an ethical quandary or worse, facing a charge of obstruction of justice.” Id.

3. The “Upjohn warning”

a. A warning has been developed to “make clear that the lawyer does not represent the individual employee; that anything said by the employee to the lawyers will be protected by the company’s attorney-client privilege subject to waiver of the privilege in the sole discretion of the company; and that the individual may wish to consult with his own attorney if he has any concerns about his own potential legal exposure.” United States v. Ruehle, 583 F.3d 600, n.3 (9th Cir 2009).

1.) These warnings are commonly called “Upjohn warnings” (after Upjohn Co. v. United States, 449 U.S. 383, 393-96 (1981)) or “corporate Miranda warnings” (after Miranda v. Arizona, 384 U.S. 436 (1966)).

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4. The Broadcom case

a. The Broadcom stock-option backdating scandal occasioned the opinion in United States v. Ruehle, 583 F.3d 600 (9th Cir 2009), in which the court held that statements made by Ruehle (Broadcom’s chief financial officer) to outside lawyers brought in to investigate the backdating allegations, were not covered by the attorney-client privilege.

1.) Ruehle was criminally indicted for his role in the backdating scheme, and sought to exclude from his criminal trial the statements he had made to the company’s outside, asserting that the statements were privileged. The outside lawyers testified in the hearing on the motion to exclude that they had given Ruehle a corporate Miranda warning, and thus no privilege should apply. Ruehle, however, denied receiving such a warning, leading to the lower court’s exclusion of Ruehle’s statements.

2.) The government appealed, and the Ninth Circuit reversed, holding that Ruehle’s statements were made without any expectation that they would be held as confidential. In particular, Ruehle admitted that he understood that the fruits of the investigation would be provided to the company’s outside accounting firm for the benefit of the company. Therefore, the predicate of attorney-client privilege – confidentiality – was absent.

III. The Duty of Confidentiality

A. Many of the most obvious Watergate ethics issues arise from the tension between the lawyer’s duty of confidentiality on the one hand, and the important countervailing factors that can lead to application of the limited exceptions to the confidentiality duty.

1. MRPC 1.6 provides that

a. “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).”

2. The “information relating to the representation” standard arguably covers a broader range of information than DR 4-101, the confidentiality

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provision of the former Code of Professional Responsibility, which required the lawyer to safeguard a client’s “confidences” and “secrets.”

3. The major exceptions to the duty of confidentiality:

a. MRPC 1.6(b) provides that: “A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: … (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services; (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services.

b. MRPC 1.6 cmt. [15] also notes that the requirement of candor to a tribunal and the prohibition against assisting the client in criminal or fraudulent conduct in connection with a judicial proceeding trumps Rule 1.6: “Rule 3.3 … requires disclosure in some circumstances regardless of whether such disclosure is permitted by this Rule.”

4. Significantly, MRPC 1.6(b)(6) also contains an exception for disclosures mandated in order “to comply with other law or a court order.”

a. In connection with John Dean’s work as counsel to the President, one such “other law” was 28 U.S.C. § 535(b). The statute was first enacted in 1966, and requires government lawyers to report to the Attorney General any suspected violation of the federal criminal code by other federal officials.

b. With respect to White House counsel, it seems clear that the legal duty set out in 28 U.S.C. § 535(b) would provide an exception that would trump any duty of confidentiality.

1.) This would be the result under the Model Rules of Professional Conduct, but it would also have arguably been the result under the former Model Code of Professional Responsibility, which also carved out an exception to confidentiality when “required by law or court order.” DR 4-101(c)(2).

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B. The limited exceptions to the duty of confidentiality are also tested in other settings – particularly in proceedings before a “tribunal,” defined as “a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity.” MRPC 1.0(m).

1. For instance, MRPC 3.3(a)(3) mandates candor to a tribunal, and bars a lawyer from knowingly offering false evidence, and further, “If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.”

2. More broadly, under MRPC 3.3(b), “A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.”

a. For instance, if a client makes a false statement in a deposition taken in connection with a case before a tribunal, MRPC 3.3(b) would require the lawyer to, if necessary, disclose the client’s false statement to the tribunal.

3. The duties of disclosure provided under MRPC 3.3 explicitly trump the confidentiality provisions of MRPC 1.6:

a. “The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.” MRPC 3.3(c).

4. Significantly, this provision of the Model Rules of Professional Conduct is subject to some variation in the state adaptations of the Rules. Contrary to the approach of the Model Rules, a few jurisdictions have maintained the primacy of client confidentiality over the duty to disclose client criminal or fraudulent conduct to a tribunal.

a. Notwithstanding the influence of Watergate on the field of legal ethics, the District of Columbia’s version of the Model Rules takes this more confidentiality-protective approach. Its version of Rule 3.3 does not trump the confidentiality obligations of Rule 1.6. See D.C. Rule of Prof’l Cond. 3.3(a), (d) (lawyer shall not knowingly make false statement of fact or law to tribunal or fail to correct false statement previously made “unless correction would require disclosure of information that is prohibited by Rule 1.6; lawyer

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receiving information clearly establishing that fraud has been perpetrated on tribunal shall take remedial measures including disclosure to tribunal “to the extent disclosure is permitted by Rule 1.6.”).

b. The versions of the Model Rules adopted by several other states follow this same approach – in particular, North Dakota, Virginia and Washington. See ABA/BNA Lawyer's Manual on Professional Conduct at § 61:301 (“State Rules”).

IV. Duty of Fairness to Opposing Parties and Counsel

A. MRPC 3.4 provides that:

“A lawyer shall not:

(a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.”

B. The comments to MRPC 3.4 note that “Applicable law in many jurisdictions makes it an offense to destroy material for purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen. Falsifying evidence is also generally a criminal offense.” Id. at cmt. [2].

1. For instance, the spoliation of evidence is a particular issue in e-discovery, where significant sanctions can follow the intentional or unintentional destruction of electronic evidence subject to discovery. See, e.g., Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 430 (S.D.N.Y. 2004); Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 2010 U.S. Dist. LEXIS 1839, 2010 WL 93124 (S.D.N.Y. Jan. 11, 2010), amended by 685 F. Supp. 2d 456 (S.D.N.Y. 2010); Practicing Law Institute (Litig. & Admin. Pract. Series) PLI Order No. 28536, Current Developments in Federal Civil Practice 2011 at *109 (Feb. 8, 2011) (noting that “evidence destruction is a potential minefield for outside counsel.”).

C. On the other hand, “Applicable law may permit a lawyer to take temporary possession of physical evidence of client crimes for the purpose of conducting a limited examination that will not alter or destroy material characteristics of the evidence. In such a case, applicable law may require the lawyer to turn the

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evidence over to the police or other prosecuting authority, depending on the circumstances.” MRPC 3.4 at cmt. [2].

D. In the Watergate context, the emptying of Howard Hunt’s safe, the storage of the contents with John Dean as the President’s counsel, the decision to give some of the contents directly to the acting director of the FBI, and Dean’s subsequent shredding of the “Hermes notebooks” (see John Dean, Blind Ambition (2009 ed.) (“Blind Ambition”) at 118, 142, 219) were all carried out expressly in order to obstruct the availability of the contents of the safe as evidence.

1. See, e.g., Office of Disciplinary Counsel v. Klaas, 91 Ohio St. 3d 86, 742 N.E.2d 612 (Ohio 2001) (criminal defense lawyer obstructed justice by advising former client of planned FBI drug raid and secretly telling client to “clean up his act” and be “squeaky clean,” which client understood to mean he should get rid of his drugs; lawyer’s criminal conviction for obstruction of justice augmented by one-year suspension from practice).

2. See also Stephen Gillers, Guns, Fruits, Drugs and Documents: A Criminal Defense Lawyer’s Responsibility for Real Evidence, 63 Stan. L. Rev. 813 at 815, 868 (Apr. 2011) (discussing advice Nixon received from Leonard Garment – Nixon’s former law partner and then a member of the White House staff – that destroying inculpating White House tapes would “probably be a crime.”).

V. Duty to Report Misconduct – Clients’, Other Lawyers’, and One’s Own

A. Reporting client misconduct

1. See above, regarding confidentiality and its exceptions.

2. See above, regarding effect of being before a “tribunal” on the duty to report misconduct.

B. Reporting ethical misconduct by other lawyers

1. MRPC 8.3(a) provides: “A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.”

a. There is a carve-out, exempting from the disclosure requirement “information otherwise protected by Rule 1.6 …”

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2. The legal profession is self-regulating, and Rule 8.3 would seem to be an important component of a sustainable system of internal policing. However, commentators have noted that the requirement that lawyers report the professional misconduct of other lawyers appears honored mainly in the breach. See, e.g., Charles Wolfram, Modern Legal Ethics § 12.10.1 at 683 (1986) (“Probably no other professional requirement is as widely ignored by lawyers subject to it.”).

a. In fact, the cases in which lawyers have been sanctioned solely for their failure to report misconduct by other lawyers are so few in number that they are notorious. See In re Himmel, 533 N.E.2d 790, 794 (Ill. 1990); In re Condit, No. SB-0021-D (Ariz. Mar. 14, 1995), cited in Arthur Greenbaum, The Attorney’s Duty to Report Professional Misconduct: A Roadmap for Reform, 16 Geo. J. Legal Ethics 259 at n. 65 (2003).

C. Self-reporting one’s own ethical misconduct

1. By its literal language, Rule 8.3 does not call for self-reporting one’s own ethical misconduct, as it calls for knowledge of “another lawyer’s” violation of the Rules.

a. Indeed, the privilege against self-incrimination, although not explicitly mentioned in the rule as an exception, “must be read into [Rule 8.3].” Lawyer’s Deskbook, § 8.3-2(c) at 1236. The rationale is that the rule cannot impose a duty to incriminate oneself – otherwise it would be unconstitutional. Id.

2. However, the predecessor of Rule 8.3, DR 1-103(A), did require reporting of one’s own misconduct, not only that of other lawyers: “A lawyer possessing unprivileged knowledge of a violation of [the Disciplinary Rules] shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.” See also ABA Comm. on Ethics & Prof’l Resp., Informal Op. 1279 (1973) (lawyer’s duty to report ethical misconduct extends to own violation of ethics rules, although not violation of criminal statutes).

a. The lawyer conduct rules of several state jurisdictions retain the language of DR 1-103(A), and thus arguably extend the duty to reporting one’s own ethical misconduct. See, e.g., Ohio Rule of Prof’l Cond. 8.3(a).

VI. Misconduct by a Lawyer Not Engaged in the Practice of Law

A. The legal ethics rules apply even when lawyers are not “practicing law.”

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1. Many of the participants in Watergate were lawyers (including graduates from top law schools), who were not necessarily working in a legal capacity at the time.

a. For instance, John Dean’s list of the indictable Watergate players (Blind Ambition at 307) included:

1.) G. Gordon Liddy, White House aide, staff of the Finance Committee of Committee to Re-elect the President; Fordham Law ‘57

2.) John N. Mitchell, Director, Committee to Re-elect the President (formerly U.S. Attorney General); Fordham Law ‘37

3.) John Ehrlichman, Chief domestic affairs advisor to the President; Stanford Law, ‘51

4.) Gordon C. Strachan, assistant to H.R. Haldeman; University of California, Berkeley, ’68.

b. In fact, no fewer than 21 lawyers were involved in Watergate, many of them not working in a purely legal capacity. Watergate: What Was It? at 611-12.

2. When a Rule of Professional Conduct is meant to apply to the lawyer only when representing a client, the Model Rules so specify.

a. E.g., the prohibition against engaging “in a professional capacity” in conduct involving unlawful discrimination based on race, color, religion…” etc. MRPC 8.4(g).

b. E.g., providing services in connection with lawyer’s ancillary business, when “a lawyer shall be subject to the Model Rules of Professional Conduct” if those non-legal services are provided “in circumstances that are not distinct from the lawyer’s provision of legal services to clients,” but otherwise, the lawyer shall not be subject to the Rules. MRPC 5.7(a).

c. E.g., it is not “professional misconduct” to commit offenses involving “moral turpitude” that do not reflect adversely on fitness to practice law, such as “adultery and comparable offenses.” MRPC 8.4 cmt. [1].

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1.) However, the Court of Appeals for the District of Columbia has a long history of viewing all crimes involving lawyers as “moral turpitude,” and specifically those arising from Watergate.

a.) In re Colson, 412 A2d 1160 (D.C. 1979). (obstruction of justice held to be moral turpitude per se; pleading guilty to crime of moral turpitude invoked automatic disbarment of former White House Counsel);

b.) District of Columbia v. Kleindienst, 345 A.2d 146 (D.C. 1975) (misdemeanor conviction for refusal of Congressional witness to testify or produce papers was crime of moral turpitude, invoking automatic disbarment of former U.S. Attorney General).

3. Thus, except for the Model Rules’ express carve-outs, they arguably apply to the conduct of licensed lawyers even when they are not “practicing law.”

B. The “lawyer’s hat” in the corporate context

1. Many times a lawyer works on behalf of a client in a non-legal capacity. For example, in the corporate world, a lawyer might render business advice as a corporate Chief Financial Officer. Or a lawyer may sit on a corporate Board of Directors. Do the legal ethics rules apply to those non-legal functions?

2. Arguably, the answer is “Yes” because, except for the specifically-stated carve-outs, the Model Rules apply to all conduct by lawyers, not just “lawyer conduct.”

a. See, e.g., In re Mattera, 168 A.2d 38, 41 (N.J. 1961) (“It has long been settled ... that any misbehavior, private or professional, which reveals lack of character and integrity essential for the attorney's franchise constitutes a basis for discipline. The reason for this rule is not a desire to supervise the private lives of attorneys but rather that the character of a man is single and hence misconduct revealing a deficiency is not less compelling because the attorney was not wearing his professional mantle at the time.”).

b. For a scholarly view that ethics rules must apply to even lawyers’ “private” conduct, see Barrie Althoff, Big Brother is Watching: Discipline for “Private” Conduct, 2000 Prof. Law. 81 (2000).

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VII. Duty to Investigate

A. John Dean spent much effort dodging the White House’s demand that he conduct a sham “investigation” into the Watergate burglary. The “investigation” was envisioned as part of a strategy aimed at keeping a lid on the scandal. (Blind Ambition at 151-53, 167, 199, 245 262, 294.)

B. In a more general context, does a lawyer have a duty to independently investigate a client’s conduct, for instance, if circumstances raise suspicions about possible client wrongdoing?

1. The answer, in general, is “No.”

a. MRPC 2.1 cmt. {5]: “In general, a lawyer is not expected to give advice until asked by the client. However, when a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client, the lawyer’s duty to the client under Rule 1.4 may require that the lawyer offer advice if the client’s course of action is related to the representation. … A lawyer ordinarily has no duty to initiate investigation of a client’s affairs or to give advice that the client has indicated is unwanted, but a lawyer may initiate advice to a client when doing so appears to be in the client’s interest.”

b. See also Lawyer’s Deskbook, § 2.1-1 at 686 (“Normally the lawyer need not give unsought advice …” although, may do so if in the client’s interest).

VIII. Some other legal ethics considerations raised by Watergate

A. Is ignorance an excuse for a lawyer’s ethical lapses?

1. Ignorance of the law

a. John Dean has written about an April 14, 1973 meeting with Haldeman and Ehrlichman in which Dean cited the criminal statutes that he predicted would be used in indictments against those involved in Watergate and its cover-up, commenting on the number of lawyers on the list of potential criminal defendants. Dean at that time, finally confirmed, after hiring a criminal attorney, his concern that he and the others had, in fact, violated federal statutes on obstruction of justice and conspiracy. Blind Ambition at 309-10. See also Watergate: What Was It? at 618 (“Quite honestly, it never occurred to me that we were obstructing justice, until I began reading the annotations to Title 18 long after

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the fact.”). What is the ethical impact of this possible ignorance of the law?

1.) Ignorance of the law raises the question of competence: MRPC 1.1: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”

2.) Dean attributes his “incompetence” as a factor in Watergate, particularly “confusion about [the parameters of] national security and inexperience with the criminal law.” Watergate: What Was It? at 618.

2. Ignorance of facts

a. Watergate and its cover-up involved a complex labyrinth of facts, which developed slowly over time. The Watergate participants were dedicated to ensuring secrecy, and facts were only revealed slowly – and often incompletely.

b. Several Model Rules depend on the lawyer’s knowledge of the facts. Significantly, “knowledge” means actual knowledge, including knowledge inferred from circumstances. (MRPC 1.0(g).)

1.) See, e.g., MRPC 1.2(d) (lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent); MRPC 1.2 cmt. [10] (when client’s course of action has already begun and is continuing, the lawyer is required to avoid assisting client, “for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed.”); MRPC 3.3(a)(3) (“A lawyer shall not knowingly do any of the following: … (3) offer evidence that the lawyer knows to be false.”)MRPC 3.3 cmt [8] (prohibition against offering false evidence only applies if the lawyer knows that the evidence is false; reasonable belief that evidence is false does not preclude its presentation to the trier of fact).

c. But a lawyer cannot willfully ignore facts regarding client misconduct. For instance, in the context of lawyer liability to third parties for the client’s fraudulent activity, several cases are instructive. See, e.g., United States v. Cavin, 39 F.3d 1299, 1310

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(5th Cir. 1994) (proper to give jury instruction in prosecution of lawyer when prosecution showed: (1) lawyer was aware of high probability of existence of illegal conduct; and (2) lawyer made purposeful effort to avoid learning of illegal conduct); Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 585, 590 (9th Cir. 1983) (given law firm’s awareness of high probability of rebates, trial court properly found that firm was intentionally ignorant of client’s illegal payment of rebates); United States v. Benjamin, 328 F.2d 854 (2d Cir. 1964) (lawyer could not consciously disregard readily available information demonstrating illegal nature of client's transaction).

1.) “Willful ignorance” of facts has also received scholarly analysis. In The Ethics of Willful Ignorance, 24 Geo. J. Legal Ethics 187 (2011), Prof. Rebecca Roiphe argues that by requiring “actual knowledge” to trigger various ethics obligations, the Model Rules “allow lawyers to avoid responsibilities to the community and the public by remaining ignorant of relevant facts. For example, lawyers do not face disciplinary charges for assisting in client fraud as long as they avoid information that might lead them to know about the criminal conduct.” Id. at 187. She cites the Enron collapse, involving among its cast of characters “the attorney who facilitates the wrongdoing, in part, by remaining ignorant of its most grisly aspect.” Id. at 189. Lawyers who were involved in the underlying fraudulent transactions were instructed to review the questionable deals but to not look into the accounting treatment of those deals. The lawyers did not interview any lower-level employees who had been identified as witnesses to the problem. Id.

2.) In its preliminary report leading to the adoption of Model Rule 1.13, with its reporting-up requirement, the ABA Task Force on Corporate Responsibility recommended that a new definition of “knowledge” be adopted that would not permit lawyers to ignore the obvious. The final report dropped the suggestion. See Roiphe, supra, at 209.

3.) See also Robert W. Gordon, A New Role for Lawyers: The Corporate Counselor After Enron, 35 Conn. L. Rev., 1185, 1187-90 (2003) (citing belief of corporate lawyers that it is ethically permitted to passively acquiesce in client fraud through failure to inquire or investigate); William H.

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Simon, Wrongs of Ignorance and Ambiguity: Lawyer Responsibility for Collective Misconduct, 22 Yale J. on Reg. 1, 5-8 (2005).

B. Duty to Remonstrate with the Client

1. Under the circumstances presented by Watergate, does White House counsel have a positive ethical duty to try to remonstrate with the client? Did Dean fulfill any such duty when he warned the President that there was “a cancer on his presidency”?

2. Remonstration is required at least with respect to conduct or activities that would involve counsel. MRPC 1.4(a)(5) provides that “A lawyer shall … consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.”

a. Thus, when the lawyer “knows” that the client expects the lawyer to, for instance, participate in a conspiracy or in obstructing justice, the Rules of Professional Conduct, among other things, require the lawyer to inform the client that the lawyer cannot ethically go along with the scheme.

b. Unsuccessful remonstration, and the client’s persistence in a course of conduct that would involve the lawyer in a violation of a conduct rule are grounds for mandatory withdrawal from the representation. See MRPC 1.16(a)(1) (mandatory withdrawal where representation will result in violation of professional conduct rule or “other law”); ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 92-366, “Withdrawal when a Lawyer's Services Will Otherwise be Used to Perpetrate a Fraud” (Aug. 8, 1992) (discussing intersection among Rules 1.13, 1.6 and 3.3).

c. See also Lawyer’s Deskbook, § 1.4-1(e) at 142 (“When a lawyer has delineated the scope of the law for a client, and a client asks a lawyer to represent the client in a course of conduct that involves the lawyer in counseling or assisting a client in a crime or fraud, the lawyer must decline and inform the client about the relevant legal limitations on the lawyer’s conduct.”)

C. When worlds collide – personal loyalties, personal morality and legal ethics

1. Watergate and its cover-up present stark issues of personal morality and its relationship to the rules of legal ethics that frame the professional lives of lawyers.

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2. The Model Rules appear implicitly to take the view that personal morals and legal ethics simply overlap.

a. Model Rules, Preamble at [5]: “Lawyers play a vital role in the preservation of society. A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others.”

b. Model Rules, Scope at [9]: “Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an ethical person while earning a satisfactory living.”

3. But there are more nuanced approaches, which take account of the pronounced differences that can exist between a lawyer’s moral obligations and the ethical obligations imposed by professional rules.

a. See Paulsen, supra, at 83 (analyzing clash between duties of confidentiality and loyalty and author’s perceived moral imperative of thwarting nomination of (now former) Justice David Souter, thereby preventing “disastrous” reaffirmation of Roe v. Wade).

b. There is a significant body of scholarship on the “moral duties” of lawyers, which may overlap or diverge from ethical considerations. See, e.g., William Simon, The Practice of Justice: A Theory of Lawyers’ Ethics (1998); Deborah L Rhode, In the Interests of Justice: Reforming the Legal Profession 66-67 (2000) (urging contextual moral framework requiring lawyers to accept personal responsibility for the moral consequences of their professional actions); James E. Fleming, The Lawyer as a Citizen, 70 Fordham L. Rev. 1699 (2002) (arguing that “moral schizophrenia” results from the differentiation of professional morality from personal morality, and that only the integration of moral personality and responsibility can overcome lawyer alienation and anesthetization).

4. Looked at from a different angle, does a lawyer have any duty to carry out lawful client goals that the lawyer disagrees with on moral grounds?

a. For instance, does a criminal defense attorney have any duty to accept representation of a cooperating informer, where the goal of the representation is to obtain a cooperation agreement that would

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reduce the client’s punishment in exchange for information aimed at inculpating another?

b. Such a question contrasts the ideal of providing access to legal services vs. the ability to decline to represent morally repugnant clients.

1.) Former Model Code Ethical Consideration 1-1 provided that “[a] basic tenet of the professional responsibility of lawyers is that every person in our society should have ready access to the independent professional services of a lawyer of integrity and competence.” Id. Similarly the Preamble to the Model Rules states that a lawyer “should … ensure access to the legal system” and “equal access to our system of justice,” without regard to economic circumstances. Id. at [6].

2.) At the same time, MRPC 1.16(b)(4) provides that a lawyer may withdraw from representation of a client who “insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.” (Such permissive withdrawal requires, among other things, that the withdrawing lawyer take reasonably practicable steps to protect the client’s interests.)

c. Some criminal defense lawyers refuse on moral grounds to represent informers.

1.) See, e.g., John Wesley Hall, Jr., “The Moral Conundrum of Representing the Rat,” in Professional Responsibility in Criminal Defense Practice 3d § 15:12 (2010) (“Some lawyers have a firm policy against becoming involved with snitches. They believe that they have both the right and obligation to exercise their independent moral judgment by refusing to participate in the ‘dirty business’ of informer arrangements. Other lawyers claim that this is an elitist position which they say is available only to successful retained counsel, and not to many private practitioners or public defenders who often represent those most in need.”

2.) Representing the informer whose story changes in response to prosecutorial suggestion can raise the possibility that the client will commit perjury. Hall, supra, comments that in that event, “[a] snitch’s lawyer probably cannot breach the attorney-client privilege and tell the defendant or target

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about the informer’s prior inconsistent statement.” Id. This seems doubtful in light of MRPC 3.3, discussed above.

3.) Representing the informer is also objectionable so some criminal defense lawyers because it can involve the lawyer in the phenomenon of unfairly disproportionate punishment. For example, in the Michael Milken insider trading case, a clerk at Drexel Burnham Lambert received an 18-month sentence for obstructing justice. In contrast, Ivan Boesky, the insider trading mogul, received only a 36-month sentence because he cooperated with prosecutors by “snitching” on Michael Milken. See Hall, supra, at text accompanying n.20.

4.) Based in part on MRPC 1.16(b)(4), Hall concludes that “compelling defense lawyers to become involved in informer activities would strip lawyers of personal responsibility and accountability and remove the lawyer’s autonomy as a moral person.” Id. at text accompanying n.29. “Divorcing lawyering from the lawyer’s personal principles and ethical judgments ‘removes the essential character of the lawyer.’ ‘Lawyers should have ethical discretion to refuse to assist in the pursuit of legally permissible courses of action….’” Id. (quoting Thomas Shaffer, Legal Ethics and the Good Client, 36 Cath. U. L. Rev. 319, 330 (1986)).

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