Ethics of Lawyering in Government - Professor Kathleen Clark
- Dan Freeman in the Hearing Room of the
- House of Judiciary Committee.
This course, taught in conjunction with the clinical component of the Congressional and Administrative Law Clinic, covered the ethics of policymaking, ethics regulations that are applicable to all government officials, the law governing lawyer conduct, and the professional and other rules specific to government lawyers and lobbyists.
The course emphasized recent developments in these topics, including significant federal court rulings, disciplinary decisions, and some of the many scandals and legal controversies that have involved lawyers in government. Nearly every class meeting featured at least one guest speaker who had been actively involved in the relevant litigation or governmental decision-making. These guest speakers made short presentations and then fielded questions from students. In order to prepare for each class, students needed to read carefully the assigned materials — usually excerpts from relevant court decisions, news articles or congressional reports — and prepare questions to ask the speakers.
Selected Speakers and Topics from Previous Years
The Use and Abuse of Government Ethics: An Introduction & History
- Peter Morgan
This class provided a framework for the legal and government ethics issues that were the subject of this course. It reviewed the sources of information necessary to research issues of legal ethics, and gave an overview of government ethics issues and their increasing importance in political life.
Guest Speaker - Peter W. Morgan is a partner at Dickstein Shapiro Morin & Oshinsky and co-author of The Appearance of Impropriety: How Ethics Wars Have Undermined American Government, Business and Society. In 1992, while Morgan was teaching law at the University of Tennessee, he wrote an essay on the same subject for Stanford Law Review.
Confidentiality, Leaking, and Ethics Allegations in the Nomination Process: The Anita Hill Leak as a Case-Study
- Tim Phelps, Cynthia Hogan and Mark Disler discussing duties of
- confidentiality and the leak of Anita Hill’s affidavit.
During one weekend in October of 1991, the nation was transfixed by the televised hearings of the Senate Judiciary Committee examining Anita Hill's allegations against Clarence Thomas. The Committee had been pressured into holding these hearings after someone -- presumably a Senate staffer -- leaked Hill's confidential statement to the press. Following the Senate's vote confirming Thomas as a Supreme Court Justice, the Senate hired a "Temporary Independent Special Counsel" to investigate the identity of the leaker. This class focused on lawyers' and government officials' ethical and legal obligations of confidentiality; on the practices of authorized and unauthorized leaking of information to the press; and on the efficacy of post-leak investigations.
Guest Speakers - Mark Disler was chief counsel on Sen. Orrin Hatch's Judiciary staff during the Hill-Thomas hearings. During the Reagan administration, Disler was Deputy Assistant Attorney General for the Civil Rights Division. Currently he works as a lobbyist with Black, Kelly, Scruggs & Healey; Cynthia Hogan was General Counsel on Senate Judiciary Committee on the staff of Sen. Joe Biden during the Hill-Thomas hearings. Later she served as the Staff Director and the Chief Counsel of the Committee; Timothy Phelps is one of the two journalists to whom the Anita Hill allegations were leaked. He is currently the foreign editor for New York NEWSDAY.
Post-Employment Restrictions on Lawyers and Government Employees; The Bar Disciplinary Process
This class discussed the federal statute and the professional rules that limit former government lawyers' ability to represent clients. The D.C. Bar Counsel is in the process of attempting to discipline Abraham Sofaer, a former federal judge who served as the State Department's chief lawyer during the Reagan and Bush administrations, for his representation of Libya regarding the Lockerbie bombing. This class featured presentations from the two lawyers who will argue this case before the D.C. Court of Appeals later this spring.
Guest Speakers - Leonard Becker is the chief disciplinary official for the D.C. Bar, and has been prosecuting Abraham Sofaer for violating the post-employment rule.
Attorney-Client Privilege: for Individuals, Corporations, and Governments?
This class examined the attorney-client privilege and its availability for entities such as corporations and governments. In 1997, the 8th Circuit granted Independent Counsel Kenneth Starr's request for White House lawyers' notes of conversations with First Lady Hillary Clinton, over their objection that the notes were protected by attorney-client privilege. The lawyers for White House sought review by the U.S. Supreme Court, but the Court - just weeks after it rejected President Clinton's broad claim of immunity in the Paula Jones litigation - refused to hear the case. In this class we heard the arguments that the Supreme Court missed out on.
Guest Speakers - John Bates was Associate Independent Counsel for Whitewater Independent Counsel Kenneth Starr. Before that, he worked in the U.S. Attorney's Office for the District of Columbia, where he was the Chief of the Civil Division. Bates currently works at the law firm of Miller & Chevalier; Miriam Nemetz was Associate Counsel to the President from 1995 to 1997, and her notes of conversations with Hillary Rodham Clinton were the subject of the subpoena litigated in In re Grand Jury Subpoena Duces Tecum. She now works at Mayer Brown & Platt, the law firm that contested the subpoena on behalf of the White House.
Government Attorneys: What is their Role? Who is their Client?
This class examined the role of a government lawyer. To whom does a government lawyer owe loyalty? Under what circumstances should she keep the confidences of other government officials? Whose directions should she take? What role should her own judgment play in determining what she ought to do? How are a government lawyer's responsibilities different from those of a lawyer in the private sector? In this class, we heard from two lawyers: one with extensive experience both in the executive branch and in private practice, and another who has represented the institution of the U.S. Senate. We considered how these lawyers' role differ from those of lawyers (or legal interns) in other Congressional and executive branch offices.
Guest Speakers - Lloyd Cutler previously served as White House Counsel for Presidents Carter and Clinton, and is a founding partner of Wilmer, Cutler & Pickering, one of Washington, D.C.'s premier law firms;Morgan Frankel has worked in the office of the Senate Legal Counsel since 1981, where he has provided advice to litigated on behalf of the U.S. Senate.
Campaign Finance Issues -- Part I: Perspectives on Reform
This class examined extensive restrictions on the receipt of gifts, and compared those rules with the laws governing campaign finance.
Guest Speakers - Jan Baran, a partner at Wiley Rein & Fielding, is a prominent practitioner of campaign finance law and has represented, among others, the Republican Party and the Speaker of the House, Newt Gingrich; Ruth Marcus is a reporter for the Washington Post who has covered campaign finance issues and politics; Ellen Miller is founder and executive director of Public Campaign, a non-profit organization "dedicated to comprehensive campaign finance reform and taking special-interest money out of America's elections." Before founding Public Campaign, Miller served for 12 years as executive director of the Center for Responsive Politics; Ellen Weintraub was an Associate Counsel to the House Ethics Committee, where she was involved in the reform of the House Gift Rule. Currently she practices government ethics and campaign finance law as part of the Political Law Group at Perkins Coie.
Independent Counsels: Investigators Run Amok?
This class examined the independent counsel statute, including the history of "independent" investigations before and after enactment of the statute in 1978, the constitutionality of the statute, and the policy concerns raised by such investigations. Students role-played a debate over whether to appoint an Independent Counsel to investigate a hypothetical allegation of illegal campaign fundraising.
Guest Speakers - Prof. Katy Harriger is a professor of Political Science at Wake Forest University and the author of the leading book on the Independent Counsel statute, INDEPENDENT JUSTICE (1992); John Q. Barrett is an assistant professor at St. John's University School of Law, where he teaches criminal law and ethics. Prior to teaching, he spent five years as an Assistant Independent Counsel for Lawrence Walsh in the Iran-Contra investigation and later as Counsel to the Justice Department's Inspector General, Michael Bromwich; Brett Kavanaugh spent several years as an Assistant Independent Counsel for Whitewater Independent Counsel Kenneth Starr, and currently practices law with Mr. Starr at Kirkland & Ellis. While with the Independent Counsel's office, Kavanaugh was involved in the litigation over the White House's assertion of attorney-client privilege. (See notes regarding Jan. 26, 1998 class); Irv Nathan, a partner at Arnold & Porter, was deputy assistant attorney general in the Criminal Division and chair of the American Bar Association committee on the independent counsel statute.
Campaign Finance Issues -- Part II: Lobbying and Campaign Fundraising
- Jeff Blattner & Susan Kaplan
In this class, students heard from one of Washington's top lobbyists and a leading election lawyer. The class examined the connection between lobbying and campaign fundraising, and discussed why lobbyists donate to campaigns and help raise money for members of Congress.
Guest Speakers - Jay Berman, up until recently the head of the Recording Industry Association of America, is a leading lobbyist in Washington and has been raising money for Congressional campaigns for other three decades; Bill Canfield is an election lawyer and partner at William & Jensen. Formerly he served as Chief Counsel of the Senate Ethics Committee.
Government Employees' Right to Disobey
This class examined options available to government employees who are asked to engage in illegal conduct. The law in this area has changed substantially in the 20 years since Prof. Vaughn's article was published, in part due to the efforts of Prof. Vaughn and the lawyers at the Government Accountability Project, an advocacy group for government and corporate whistleblowers.
Guest Speakers - Prof. Robert Vaughn, teaches at American University's Washington College of Law and is an expert on the law and ethics of public employment; Louis Clark is the Executive Director of the Government Accountability Project; Thomas Devine is the Legal Director at the Government Accountability Project.
Inspectors General: The Challenges of Reforming from Within
This class examined the role of Inspectors General as a response to the need for internal investigations within the Executive Branch.
Guest Speaker -Michael Bromwich has been the Inspector General of the Justice Department since the creation of that office in 1993. Before that, he was a partner in the D.C. office of Mayer, Brown & Platt.
Government Ethics v. The First Amendment
- Bill Dauster
This class addressed the accommodation between ethics regulations and government employees' First Amendment rights.
Guest Speaker - Steven Kohn is a lawyer in private practice who has represented employees in First Amendment challenges to ethics regulations.
Truth, Lies, and Lawyers' Bills
Lawyers in private practice face ethical issues every day when they keep their time records and bill their clients for their time and expenses. In recent years, successful lawyers at the some of the countries most elite law firms have been brought down by their own fraud. In this class we heard from one of these lawyers as well as another lawyer who attempted to blow the whistle on billing practices at his firm.
Guest Speakers - Webster Hubbell, former Associate Attorney General of the United States and former Chief Justice of the Arkansas Supreme Court, spent more than a year in federal prison after pleading guilty to defrauding his clients and partners at the Rose Law Firm in Little Rock, Arkansas;Chittaranjan Nirmel practices intellectual property law with . Previously, he worked at the Justice Department and the National Highway Traffic Safety Administration.
The Ethics of Political Life -- Can a Good Politician be a Good Person?
This class examined the tension experienced by politicians in attempting to further their goals through the political process.
Guest Speaker - Eric Lane, Eric J. Schmertz Distinguished Professor of Public Law & Public Service, Hofstra University School of Law and former Executive Director, New York City Charter Revision Commission.