Conflict of interest is one of those concepts that’s drummed into aspiring attorneys as fundamental to legal ethics. That’s why it’s so mystifying that William Burck, a partner at Quinn Emanuel, is representing not only Steve Bannon, the former chief White House strategist, but Don McGahn, the White House counsel and Reince Priebus, former White House chief of staff.
It’s all but impossible to imagine that Burck has, or will be able to, meet all of his ethical responsibilities for all three clients. He’s already given one client—that’d be McGahn—influence over another’s representation—hi, Bannon. This arrangement is mindblowingly problematic for both Burck and McGahn, whose taxpayer-funded office is assisting a now-private citizen regarding pre-Inaugural periods. In McGahn’s case, by the way, his actions may also be illegal.
First, some basic background. The national legal ethics exam—the Multistate Professional Responsibility Exam—relies on the definition offered by the American Bar Association’s Model Rules of Professional Conduct.
[1.7] (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
In all but four states, the ethics exam is mandatory. Neither New York nor the District of Columbia, to which Burck belongs, appear among those four exceptions.
Clients can usually waive a general conflict of interest as defined above, but their lawyers must still follow specific conflict-of-interest rules. There’s one in particular that will be hard for Burck to dodge.
[1.8] (b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.
Even if Burck ditches, or is fired by, one or two of the three clients, he may have to ditch all three.
[1.9] (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
That said, the only consequences are professional, as ethics violations are adjudicated through the bar associations, and enforcement actions are rare.
Violations of law are much more straightforward. Not for the first time during the Trump administration, a high-ranking official is flirting with overt illegality. This time, it’s the White House counsel himself, McGahn.
[18 U.S.C. § 205] (a) Whoever, being an officer or employee of the United States in the executive, legislative, or judicial branch of the Government or in any agency of the United States, other than in the proper discharge of his official duties ....
(2) acts as agent or attorney for anyone before any department, agency, court, court-martial, officer, or civil, military, or naval commission in connection with any covered matter in which the United States is a party or has a direct and substantial interest; shall be subject to the penalties set forth in section 216 of this title.
The penalties for these kinds of violations? In addition to fines, up to five years in prison.
