Conflicts of commitment: legal ethics in the impeachment context.

• Author: Rhode, Deborah L.

During the impeachment proceedings against William Jefferson Clinton, a recurrent theme involved the rule of law and the role of lawyers. One memorable exchange occurred between Henry Hyde, Chair of the House Judiciary Committee, and Father Robert Drinan, a Georgetown law professor appearing on behalf of the President. What does it mean, Hyde asked rhetorically, when the nation's chief law enforcement officer "raises his hand in a lawsuit, swears to tell the troth and then doesn't ... does that erode, diminish, depreciate the rule of law ...?" "I suppose the answer is yes," Drinan responded, but "that is not the right question." To which Hyde responded: "I will do the questions, you do the answers."(1)

One lesson of the impeachment proceedings is how much it matters who gets to frame the questions. And to a considerable extent, that prerogative belonged to lawyers, both as prosecutors and defenders. Their role in the proceedings prompted renewed attention to longstanding issues of professional ethics. Familiar criticisms surfaced and resurfaced with numbing predictability. Lawyers were condemned as evasive, hypertechnical, greedy, self-serving, and amoral. The bar's defenses were equally familiar. Lawyers were applauded for upholding commitments to the rule of law, procedural fairness, and constitutional standards.

On balance, however, too much of the lawyering on display inspired too little public respect. In her New York Times column, Maureen Dowd summarized a common view: The nation's finest legal minds had managed to "bollix up everything and make a ton of money doing it." The process seemed awash with lawyers, with "more lawyers to fix the problems of ... lawyers."(2) And then, of course, came the parade of lawyer-pundits attempting to make sense of it all.

I cannot resist joining that procession, if only to help shift its direction. The recent impeachment proceedings raised crucial questions concerning lawyers' responsibilities to clients, to the system of justice, and to society generally. The process also revealed broader problems in regulatory structures. As a specialist on legal ethics who worked as senior counsel for the House Judiciary Committee minority members during those proceedings, I have a particular stake in placing those questions in broader perspective.

I also have views and constraints that are shaped by this experience. Obligations of confidentiality and concerns about objectivity prevent me from commenting or relying on the work of the House Judiciary Committee and its legal counsel. All of the sources for this article are part of the public record, and all of it was written after I left my position. Although I have tried to be as fair and accurate as possible in analyzing the ethical questions at issue, my prior role cannot help but affect my assessment. Personal involvement in a partisan proceeding inevitably shapes perceptions. As an ethics professor writing about ethics, I would be irresponsible not to acknowledge the potential for bias in my own analysis.

But neither does it follow that the appropriate response would be to avoid all discussion of matters connected with the experience. The legal ethics issues involved in the impeachment process are ones in which legal ethics scholars and the entire legal profession have a considerable stake. It would not advance the long-run interests of either group to disable academics who work on policy issues from incorporating their insights in later research. In this, as in many other contexts involving conflicts of interest, disclosure, rather than disqualification, seems the most responsible course.

What follows is an analysis of issues of professional responsibility surrounding the Clinton impeachment proceedings. The picture that emerges is by no means a complete portrayal of lawyers' roles in that process. The profession can be rightfully proud of many attorneys' performances. And on some of the less commendable conduct at issue, the full facts are unavailable. Some matters remain under investigation and the attorney-client privilege may prevent significant information from ever coming to light. Although those limitations suggest a reason to withhold judgment on certain conduct, the record is more than adequate to justify concerns about much of the lawyering at issue. So too, although Congress was still considering replacements for the Independent Counsel Act as this article went to press, the ethical concerns associated with that position are bound to recur. Whatever the current Congress decides, the framework for investigation of public officials is likely to be subject to frequent reconsideration.(3) Issues of professional responsibility need to be a prominent part of that debate.

The following discussion explores the conflicts of commitment for lawyers in the impeachment context. Part I reviews the competing personal, political, and professional interests of the Independent Counsel and some of the attorneys for Paula Jones and Monica Lewinsky. Part II addresses the conflicting roles and responsibilities that confronted the President's lawyers: conflicts between their client's political and legal needs, and conflicts between their own obligations to their client's defense and to the justice system. Part III considers ethical conflicts in the exercise of prosecutorial power; attention centers on the scope and confidentiality of the Independent Counsel's investigation, the treatment of witnesses, the referral of charges to Congress, and the management of the Senate trial. That discussion concludes with some observations about restructuring the rules and roles for prosecutors occupying positions such as Independent Counsel.

As this analysis makes clear, lawyers' ethics played a central, and too often unbecoming, part in the impeachment process. To a large extent, the standards governing lawyers' ethical conduct have remained under lawyers' control. On most matters of professional responsibility, the profession itself both defines the relevant questions and supplies the responses. If we are uncomfortable with some of the conduct attracting public concern, it is our obligation to rethink the forces that produced it and the strategies necessary to address it.

1. CONFLICTS OF INTEREST

   A fundamental principle of legal ethics, reflected in the American Bar Association's Model Rules of Professional Conduct, is that a "lawyer's own interests should not be permitted to have an adverse effect on representation of a client."(4) By this standard, a number of prominent attorneys in the impeachment proceedings fell short. More specifically, Rule 1.7(b) provides that:

   A lawyer shall not represent a client if the representation ... may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation.(5) Model Rule 8.4 also prohibits conduct "prejudicial to the administration of justice," and courts have sometimes viewed conflicts of interest as falling within that prohibition.(6) Such conflicts arose in the impeachment context when lawyers' financial concerns, ideological commitments, or desires for recognition and vindication risked compromising client interests or public responsibilities.

   1. The Independence of Independent Counsel

      Ethical problems arose early in the investigation that ultimately triggered impeachment. From the outset, the wrong example was set by the wrong person: the Independent Counsel who was leading the inquiry and who should have been most attentive to potential conflicts of interest.

      In 1994, a Special Division three-judge federal panel appointed Kenneth Starr to replace Robert Fiske as Independent Counsel. Fiske had been chosen by Attorney General Janet Reno to investigate Whitewater, a failed Arkansas real estate development, and related matters involving possible misconduct by President and Mrs. Clinton.(7) Concerns had surfaced about Fiske's potential conflicts of interest because he had been selected by a Clinton official, and because his law firm had represented the International Paper Company, which had sold land to the Whitewater Development Corporation. Although Fiske had resigned from the firm and its representation had concerned matters unrelated to Arkansas real estate, the federal panel found an appearance of impropriety.(8) As the panel's presiding judge, David Sentelle, explained, the Independent Counsel Act "contemplates an apparent as well as an actual independence on the part of the Counsel.... [T]he intent of the Act [is] that the ... [Independent Counsel] be protected against perceptions of conflict." (9) The Act also makes the Independent Counsel subject to Department of Justice policies that are consistent with its own statutory requirements,(10) These policies include conflict of interest provisions under the Ethics in Government Act, which prohibit participation in investigations or prosecutions that "may result in a personal, financial, or political conflict of interest, or the appearance thereof."(11)

      From the beginning, Starr's appointment generated the very "perceptions of conflicts" that it had been designed to avoid, and his subsequent conduct compounded public distrust. Start was chosen to head the Office of Independent Counsel [OIC] shortly after Judge Sentelle had a private lunch with Senators Jesse Helms and Lauch Faircloth, two of Clinton's and Fiske's harshest critics.(12) Starr's longstanding ties with conservative political organizations and foundations that supported attacks on the Clinton administration raised concerns that his ideological commitments might skew his prosecutorial judgments.(13) Such concerns intensified partway through his investigation, when he announced plans to resign in order to become Dean of the Schools of Law and Public Policy at Pepperdine...