An ethics expert and a constitutional scholar are skeptical of the disciplinary complaint that law professors filed against White House counsel Kellyanne Conway for supposedly making false statements to media outlets on several occasions.
Conway’s conduct violated the ethics rule against dishonesty, reflects adversely on her fitness as a lawyer, and “cries out for sanctioning by the DC bar,” the group of 15 law professors said in their Feb. 20 letter to the Office of Disciplinary Counsel in Washington.
But other law professors told Bloomberg BNA that the complaint against Conway raises broader issues about applying ethics rules to lawyers’ statements to the media in the political arena. The views expressed by these scholars suggest the complaint may not have much chance of success—and that may be a good thing.
Professor Ronald Rotunda called the complaint “a political sideshow” in an interview with Bloomberg BNA. He’s a professor at Chapman University and is the author of a professional responsibility handbook and course books on legal ethics and constitutional law.
Professor Rodney A. Smolla, who also isn’t involved in the complaint, said it implicates serious First Amendment questions. “This is uncharted legal territory,” he told Bloomberg BNA. Smolla is dean and law professor at Delaware law school.
The complainant, Abbe Smith of Georgetown Law, told Bloomberg BNA that the complaint struck a careful balance between First Amendment protections and the need to maintain the integrity of the legal profession.
D.C. Bar Counsel Wallace E. “Gene” Shipp told Bloomberg BNA that his office can’t comment on receipt of any disciplinary complaint or even acknowledge its existence. He noted that as part of the intake process for disciplinary complaints, his office looks for firsthand knowledge of the allegations.
Sanctions imposed in disciplinary proceedings can range from informal admonition to suspension to disbarment, according to D.C. rules.
D.C. Rule of Professional Conduct 8.4(c), like Model Rule 8.4(c), flatly forbids “conduct involving dishonesty, fraud, deceit, or misrepresentation,” and the rule is often applied in connection with conduct outside the practice of law.
The complaint says the professors are aware that disciplinary proceedings under Rule 8.4(c) “could lead to mischief and worse” and that lawyers shouldn’t face discipline under the rule for dishonesty unless the conduct casts their fitness to practice law into doubt or indicates a lack of the character required for bar membership. But lawyers in public office have a higher obligation than other lawyers to avoid conduct involving dishonesty, fraud, deceit or misrepresentation, the complaint says.
Along with Smith, signatories include Lawrence Fox, who’s a visiting professor at Yale, and professors at law schools in Washington, Kentucky, Massachusetts, Missouri, New York and Pennsylvania.
The letter says that signatories who are D.C. bar members were “compelled to file” the misconduct under Rule 8.3(a), which requires lawyers to inform the appropriate professional authority when they know of another lawyer’s rule violation that casts serious doubt on the lawyer’s honesty or fitness as an attorney.
Shipp said it’s an important philosophical question whether you really want lawyer discipline for conduct that occurs when people are in a political mode and dealing with political issues.
“We want a robust conversation in a First Amendment way but we don’t want lawyers to lie,” he said.
Shipp said that when a disciplinary complaint comes in the front door, it first goes to an intake section where someone reviews the complaint and makes a decision whether to docket it. The office receives 1,000 to 1,500 complaints every year and dockets about one-third of them, he said.
Shipp said that if a complaint is docketed, it goes into investigation. If there’s a decision after the investigation to file charges or make a public admonition, that would be the first time a complaint is public, Shipp said.
Shipp said that when the office receives a complaint, “we want to know if the complainant has any actual knowledge.” He recalled an occasion where 3,000 law students filed complaints about a lawyer’s actions after reading about the conduct.
So once in a while people do file a disciplinary complaint after reading about a lawyer’s conduct, Shipp said. “But people have to understand that we read too,” he said.
“These lawyers who claim they were compelled to talk were quite silent when we were told ‘If you like your health plan you can keep it,’” Rotunda said. We know from e-mails that the “you can keep it” statement was false, Rotunda said.
Rotunda said Conway’s statements referenced in the complaint appear to involve mistakes rather than lies. It’s hardly unusual for politicians not to speak with precision in impromptu comments, he said.
First Amendment expert Rodney A. Smolla told Bloomberg BNA that imposing discipine on Conway could raise constitutional concerns.
“In my view there are serious First Amendment questions implicated, and disciplinary boards and courts should use great caution before attaching serious penalties to statements—even false statements—that do not fall within such traditional categories as perjury, defamation, or fraud, and that do not arise in the speaker’s actual functioning as a practicing lawyer,” he said.
Smolla noted that in 2012, in United States v. Alvarez, the Supreme Court struck down a conviction under the federal Stolen Valor Act, holding that the First Amendment protected even intentionally false speech, such as a false claim of having won a military honor, when the falsehood did not cause the kind of palpable harm that the law has traditionally prohibited.
“The Court thus distinguished between an act of the government imposing some penalty on a speaker merely for telling a falsehood, and imposing a penalty for falsehoods that cause demonstrable harm, such as perjury in a court proceeding, or defaming someone and damaging their reputation, or engaging in a commercial fraud,” Smolla said.
Smolla said that if the statements made by Kellyanne Conway are measured against that test, then they arguably are protected by the First Amendment. Even if false, they may not be the type of falsehood that the government may penalize. “This First Amendment protection would likely be regarded by a court as particularly robust, given the charged political arena in which they were made,” Smolla said.
“The question then becomes whether lawyers are different, and may be subjected to discipline for statements that the First Amendment would shelter if uttered by non-lawyers,” Smolla said. “This is, to some degree, unexplored territory, particularly when the lawyer making the statements is not practicing law when making them, but rather engaged in a heated political exchange,” he said.
The complaint says that in an interview on MSNBC, Conway referred to the “Bowling Green Massacre” when she knew there was no such event and falsely said President Barack Obama had banned Iraqi refugees from coming into the United States for six months after the purported massacre.
The letter also complains that on the NBC television show Meet the Press, Conway said the White House had put forth “alternative facts” to media reports about the size of President Trump’s inauguration crowd.
She also violated federal rules on conflicts of interest when she endorsed Ivanka Trump products in an interview on Fox News from the White House briefing room with the White House insignia visible behind her, the complaint says.
Smith told Bloomberg BNA “it’s silly” to say that the complaint was politically motivated. “I’m a criminal defense lawyer, and I’ve never filed a complaint before,” she said.
She said she filed the complaint out of a deep concern for the integrity of the legal profession, along with the factual context of false statements by a high-ranking government official who is a lawyer.
“Repeated false statements threaten the very fabric of our democracy,” Smith said. Transparency is the hallmark of a free society, and lawyers have a unique role in upholding those values, she said.
Smith said she had two goals in filing the complaint. First, she wants the D.C. bar to investigate. But more broadly, she hopes that the complaint will remind lawyers in the Trump administration that they’re held to a higher standard than other actors in the political arena.
Smith said that she’s mindful of the First Amendment concerns, but “I think we struck a careful balance.”
She acknowledged that she doesn’t know more than an average person reading the news about whether Conway’s statements are lies. But she said that as a professor who teaches legal ethics, she has a unique understanding about how false statements by lawyers in high-ranking government positions hurt the legal profession.
The rest of the public has come to believe is that there are no limits and that political operatives can engage in speech with no holds barred, Smith said. “That’s true for politicians, and that’s fine, “ she said.
“But lawyers have to behave differently; there are higher standards for lawyers,” she said.
According to the Huffington Post, Conway is admitted to practice in four jurisdictions: the District of Columbia, Maryland, New Jersey and Pennsylvania.
Conway was admitted in D.C. under her maiden name, Kellyanne Fitzpatrick, but she was administratively suspended there for nonpayment of dues. Lawyers under administrative suspension can still be subject to discipline.
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Full text of complaint at http://src.bna.com/mtA
Copyright © 2017 American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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