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Friday, January 17, 2014

Bridgegate And Legal Conflicts

The law firm hired to represent the Office of the Governor of New Jersey (and note the "Office" is not the same as the person, Chris Christie) may have a conflict with its representation of the Port Authority of New York and New Jersey in a different matter.  It is easy to see how the PANYNJ could either point its finger at the New Jersey Executive Branch (i.e., Christie's Office), or vice versa.  As I point out below, the PANYNJ may not be able to give what's called its "informed consent" in this matter.

Lawyers are precluded under legal ethics rules -- called Rules of Professional Conduct in New Jersey -- from accepting representations of clients where there is a "concurrent conflict of interest." The primary rule at issue is Rule 1.7.  Note the text I highlight in bold:
  • (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.
There's more. Let's look at the exception paragraph -- paragraph (b) referenced above.
  • (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

    • (1) each affected client gives informed consent, confirmed in writing, after full disclosure and consultation, provided, however, that a public entity cannot consent to any such representation. When the lawyer represents multiple clients in a single matter, the consultation shall include an explanation of the common representation and the advantages and risks involved;

    • (2) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

    • (3) the representation is not prohibited by law; and

    • (4) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.
It is easy to see how Randy Mastro, the partner in charge of L'Affaire Bridgegate for the national law firm Gibson, Dunn & Crutcher, might run afoul of New Jersey's RPC 1.7 because -- as the Star-Ledger reports today -- he and the firm previously represented the PANYNJ.

Of course, that representation or other representations, other "client matters," might involve wholly unrelated subject matters.  Or they might represent personnel or operational matters, even traffic studies, and an attorney's knowledge of such things might give the new client an inappropriate advantage.  Such advantages could, theoretically (and this is just a hypothetical, to be sure) help the current client (the Office of the Governor) assign the blame to particular people or subagencies within the PANYNJ.

This highlights the risk to people and businesses of hiring a large law firm. You cannot truly know "who knows whom" and what conflicts of interest are present. Particularly the unofficial ones. (It also explains why some lawyers practice on their own, because they get to choose and keep their clients and joining a big law firm means their client base might be "conflicted out" and they would lose business.  Law is a business, after all.)

On the other hand, hiring a big law firm could be an astute (some might say, Machiavellian) move. Bigger law firms have more lawyers, and hence a much wider net of potential conflicts.  If someone is intent on impeding an investigation by making it hard for witnesses to retain lawyers to assist in required appearances at hearings or other compliance, such as with subpoenas or warrants, you just might want to try to conflict out more and more lawyers.  In the end, this strategy will not win the game. It will only waste time. 
But large, complex investigations are often an issue of which side has the stamina to persevere.  Think of it as a war of attrition.  Of course the real facts matter.  The truth matters.  However, the willingness to fight to do the things necessary to uncover the truth (or hide it, as the case may be) may be determinative of the outcome.  
Endurance -- and mental strength -- matter.

And no one would know that more than a former federal prosecutor.

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