Friday, January 21, 2011

What Professional Ethics Rules Might Scott Gessler Be Breaking?

I'm sure a legal ethics expert could tease this out a little more but this should give some direction to those interested in pursuing the topic further. I'd start at Rule 1.11 of the Colorado Rules of Professional Conduct which speaks specifically to conflicts of interest for attorneys who are employed by or an officer of the government,

(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee:
(1) is subject to Rules 1.7 and 1.9; and
(2) shall not:
(i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing; or
(ii) negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b).
Comment 3 to rule 1.11 discusses that the intent of (d)(2) is "to prevent a lawyer from exploiting public office for the advantage of another client,"

For example, a lawyer who has pursued a claim on behalf of the government may not pursue the same claim on behalf of a later private client after the lawyer has left government service, except when authorized to do so by the government agency under paragraph (a). Similarly, a lawyer who has pursued a claim on behalf of a private client may not pursue the claim on behalf of the government, except when authorized to do so by paragraph (d). As with paragraphs (a)(1) and (d)(1), Rule 1.10 is not applicable to the conflicts of interest addressed by these paragraphs.
Gessler is also bound by the general rules concerning conflicts of interest - 1.7 and 1.9. Rule 1.7 prohibits a lawyer from representing a client with whom there is a "concurrent conflict of interest" which is either a direct conflict between one client and another or where representation of one client might limit the attorney's ability to represent a current client. I'm not an ethics expert but I think the second part of this Rule might be the biggest cause of concern in the Gessler scenario.

However an attorney can still represent a client with whom there is a concurrent conflict if the lawyer believes they can dilligently represent both clients and there is no law prohibiting the representation and the two clients are not pitted against each other and each client provides informed, written consent to the representation. Seems like a lot of hurdles and even if there is no statute prohibiting this arrangement I'm not sure who can provide informed consent on behalf of the office of the Secretary of State.

Rule 1.9 concerns duties to former clients and seems like a potential landmine for Gessler as well. The key is that he can't use any information obtained in prior representation to the disadvanatge of a former client. Given Gessler's partisan affiliation I doubt he'll be using his office for the disadvantage of any former client.

Gessler has tossed himself into an ethical briar patch - he is jeopardizing his political office and his law license with this stunt.

Excellent comment from Andrew Oh-Willeke over in the Pols thread,

The firm does have work that probably won't be directly conflict of interest (e.g. drafting leases for business clients), but the attribution of Gessler's conflicts to the rest of the people in his firm quite possibly wipes out the firm's core business.  Even if Gessler did moonlight (which is a scummy thing to do) his old firm is a horrible place to do it.  

No comments: