Bill Barr needs to be disciplined by the Bar
Impeachment is not the only remedy for the Attorney General’s actions
My students always get a good laugh when I tell them that lawyers have ethical obligations. After all, we’ve all heard the standard lawyer jokes. Lawyers have a bad reputation, and unfortunately, there are a few bad apples that cause it.
In general, though, lawyers are governed by ethical rules that can result in discipline if we do not follow them. This is part of the deal we have made with the states to allow us to license ourselves: we agree that in return for a monopoly over the practice of law, we will aggressively police the actions of those licensed to do so.
Current Attorney General William Barr has become a controversial figure in Washington recently, with Speaker Nancy Pelosi accusing him of a crime, and Chairman of the House Judiciary Committee Jerry Nadler threatening him with jailtime for contempt of Congress. President Trump, for his part, is quite satisfied with Barr’s behavior, while others are concerned about the fact that he appears to be representing Trump’s interests to the exclusion of all other Americans.
Barr, as a member of the District of Columbia Bar Association since 1978, is governed by the DC Bar’s Rules of Professional Conduct. A review of those rules reveals that Barr might actually be in violation of some of those rules, even if we interpret them in the light most favorable to him.
The starting point for any analysis regarding an attorney is who is his client. That question is actually more complex than some might expect. In an article in the Notre Dame Law Review, legal scholar and Catholic priest William Dailey, CSC explored that issue, concluding that the Attorney General represents the American people, as mediated through the President. Dailey’s article should give quite a bit of comfort to supporters of Trump and Barr since he argues that the President has quite a bit of discretion in guiding the Attorney General’s work.
Although Dailey’s argument is controversial, I will accept it as the basis for my argument going forward, so nobody can say that I was unfair to Barr in my analysis.
The making false statements problem:
First, according to rule 3.3 of the DC Rules of Professional Conduct, a lawyer owes candor to any tribunal he works before. To quote the rule, the lawyer “shall not knowingly: (1)Make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.”
It appears quite clear now that when Barr was asked if he was aware if Special Counsel Robert Mueller agreed with his representations in his letter regarding the Special Counsel’s report, and Barr said he did not know, that statement was untrue. Barr had previously received a strongly-worded letter and received a phone call from Mueller which criticized the representations made in Barr’s letter. Thus, Barr made a false statement of fact to the tribunal.
Also, Barr’s letter to Congress, even if it was not made under penalty of perjury, as was his testimony, was still a statement to a tribunal since it was sent to Congress. Again, there is general agreement, including from Robert Mueller himself, that this letter was a misrepresentation of the contents of the report.
For those who might say that a Congressional committee is not a tribunal, rule 3.9 addresses that concern, making quite clear that representing a client before a legislative body counts.
His refusal to cooperate problem:
Similarly, Barr refused to turn over the Mueller report for weeks and has still refused to turn over an unredacted version of the report to Congress. This behavior constitutes a violation of rule 3.4(a). Even if we assume Barr’s job is to represent the President rather than Congress, he may not “unlawfully obstruct another party’ s access to evidence.”
Furthermore, according to rule 3.4(c ), he may not “knowingly disobey an obligation under the rules of a tribunal.” So to the extent that Congress has lawfully subpoenaed an unredacted copy of the report, his refusal to turn it over is a violation of that rule as well.
Barr’s inaccurate letter to Congress and his misleading press conference also violates rule 4.1. Even if we concede that Barr does not represent Congress at all, rule 4.1 states that a lawyer “shall not knowingly: (a) make a false statement of material fact or law to a third person.” And his efforts to slow the release of the report violate rule rule 4.4 (a) which states that “a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.”
The conflict of interest problem:
Finally, if the Attorney General represents the American people, as is broadly acknowledged, and if there is a conflict between two constitutionally co-equal branches of the government, Congress and the President, then Barr likely faces a conflict of interest.
Conflicts of interest are a big no-no for lawyers. According to rule 1.7b (4), “the lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer’s responsibilities to or interests in a third party or the lawyer’s own financial, business, property, or personal interests.” If Barr feels loyalty to Trump for appointing him Attorney General, and he fears that Trump may fire him as he fired Jeff Sessions, then he is unable to represent all of the American people due to his own financial and personal interests.
In such a case, Barr is required to withdraw from representing the client under rule 1.7(d). That conflict can be waived, however. So the question now becomes, who can waive it?
According to rule 1.13(d), if a lawyer represents an organization rather than an individual, as Barr does, the conflict can be waived by “an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.” So if Barr is representing Trump, thus creating a conflict of interest for him, Trump is unable to waive that conflict.
To be sure, we are headed to a constitutional crisis at this point. Barr is fully assisting the President in what is amounting to a coup against our constitutional order. While we can express outrage over his behavior from a number of standpoints, one that I feel especially close to is his violation of his ethical obligations as a lawyer. After all, his actions represent the kind of bad apple behavior that makes all of us attorneys look bad.
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