Some time ago there was an attorney up for United States Attorney General, I believe, and she got stung for having hired illegal aliens as nanny and chauffeur for which she paid no taxes. She had to withdraw from consideration and was fairly embarrassed by the whole fiasco. So was the Clinton Administration. Then, a federal judicial nominee was hit with the same charges – though her employment of the nanny in question was legal at the time it occurred, the court of public opinion ruled the day. I bring up these two examples of ethical dilemmas that lawyers can find themselves in and how relatively easy they are to avoid…
I recently had to analyze an ethical question for an employee who was a former government employee. The question seemed simple on its face: whether he should attend a luncheon where he would be given an award for government service in his former position. The kicker is that now he works for us, and we do business with that particular governmental entity. I recommended that the person not attend, to avoid any question of impropriety. Were it a commercial customer my analysis would have been different, but when dealing with government contracts, one must be exceedingly cautious.
This is not to say that no one should ever go into private practice after working in government; heck, K Street would shut right down. But a commercial enterprise such as mine, which is subject to the GSA schedule and rules, needs to exercise an abundance of caution when these ethical dilemmas arise.
It is not clear that Zoë Baird, the aforementioned USAG candidate, knew that she was breaking several laws when she hired her nanny and chauffeur. But it does not matter. There is no defense of innocence in most ethical investigations. I still remember my swearing-in ceremony in Brooklyn where the Justice repeated the mantra “don’t mix client money with your operating money.” Over and over he stated what should have been obvious to all in attendance. However, one regularly reads about attorneys co-mingling funds, and it is unbelievable.
Certainly, the ethics issue I outlined above is not on the scale of import like robosigners, pyramid schemes and other headline worthy breaches of law and ethics at which we all love to shake our heads and giggle with schadenfreude. But you know, there but for the Grace of God…. I have faced numerous ethical dilemmas in my relatively short career; double and triple billing at the behest of senior partners, being sworn to secrecy by a managing partner regarding a settlement in an in-firm case that was kept from the partnership, improper sexual liaisons between partners and summer associates that could have damaged the firm, even dealing with an obviously mentally unstable adverse counsel whom I was advised not to report to the Bar.
I dealt with each of these scenarios in my own way. Some results I remain ashamed of, and in others I knew that I did the right thing. But as in-house counsel, it is a comfort to have numerous outlets for ethical assistance should the need arise. We have guidebooks, a strong HR department, and any manner of ethical assistance. It would be great if firms did the same.
After two federal clerkships and several years as a litigator in law firms, David Mowry is happily ensconced as an in-house lawyer at a major technology company. He specializes in commercial leasing transactions, only sometimes misses litigation, and never regrets leaving firm life. You can reach him by email at [email protected].