On The Case

Bob Mueller and the Kushner client conflict question

(Reuters) - Robert Mueller, the former FBI director who is now leading the investigation of potential ties between Donald Trump’s campaign and Russian officials, was a lawyer for Trump son-in-law and adviser Jared Kushner right up until Mueller resigned from Wilmer to accept his appointment as special counsel in the Russia probe.

The two ex-Wilmer partners who have joined Mueller’s special counsel team, Aaron Zebley and James Quarles, were also Kushner’s lawyers. And they and Mueller represented former Trump campaign chair Paul Manafort, too, when they were Wilmer partners.

Now that they’re under the auspices of the Justice Department, Mueller, Zebley and Quarles will be examining interactions between Russian officials and their former clients Manafort and Kushner. And if the facts warrant it, they have the authority to prosecute their former clients.

Is that ethical? Last week, Justice Department ethics experts reportedly cleared Mueller to take the special counsel assignment. But the Justice Department obviously does not speak for Kushner and Manafort. Can the Wilmer clients claim the Mueller investigation is tainted by conflicts? And can the White House – which, as my Reuters colleague Julia Edwards Ainsley was the first to report, has already proposed undermining Mueller by citing conflicts – claim Mueller should be disqualified because he was counsel to Kushner and Manafort?

I posed those questions to six experts on law firm ethics. Their unanimous answer: Under the Washington, D.C. bar’s rules of professional conduct, Mueller and the other former Wilmer partners on his team are free to investigate and even prosecute Manafort and Kushner - as long as the onetime Wilmer lawyers did not acquire confidential information about the firm’s clients.

They didn’t, according to Wilmer co-managing partner Robert Novick. In a phone interview Tuesday, Novick reiterated what Wilmer officials have said since Mueller’s special counsel appointment: Mueller had no involvement in the Kushner or Manafort matters and no access to confidential information about them.

How can Mueller, Zebley and Quarles have been counsel to Manafort and Kushner without obtaining confidential information about them? The answer lies in the age-old ethics doctrine of imputation, in which every lawyer in a firm is considered to represent every client of the firm. That doctrine dates back to the days when law firm partners could all fit around one table and chat about their cases over lunch. Now, of course, firms may have hundreds of lawyers spread around the world. Partners don’t even necessarily know one another, let alone have access to confidential details about one other’s cases.

To acknowledge the reality of modern law firms – and to allow lawyers to move from one firm to another – the ethics rules on imputation include a caveat. When lawyers move from one firm to another, they’re only barred from taking a position against their old firm’s clients if they actually know anything significant about the former client’s case. More formally, the D.C. bar rules say lawyers are bound by ethical strictures of imputation when they have “in fact acquired (confidential) information … that is material to the matter.”

That caveat releases Mueller and the other former Wilmer lawyers from ethical obligations to Kushner and Manafort, assuming the veracity of Wilmer’s assurances. “It’s a routine interpretation of the rules,” said Thomas Mason of Harris Wiltshire & Grannis.

The ethics experts also agreed that the White House – or, for that matter, anyone else under the special counsel’s scrutiny - would almost certainly lose a challenge to Mueller’s appointment based on his supposed conflicts with Manafort and Kushner. Third parties like the president don’t have legal standing to seek disqualification based on someone else’s client relationship, the experts said, so judges generally disregard third party conflict allegations.

The Trump administration could, like anyone else, file a complaint with the D.C. bar accusing Mueller of ethical violations. But Eric Hirschhorn of Winston & Strawn, who helped draft the bar rules, said Mueller could point to the caveat that allows him to oppose former Wilmer clients as long as he didn’t have access to their confidences.

“Trump would still have the same problem Kushner and Manafort have” in showing a conflict, added Mason.

The experts were divided on whether Wilmer would have been wise to have asked Kushner and Manafort to waive any potential Mueller conflict. Mark Foster of Zuckerman Spaeder and law professor Thomas Morgan of Georgetown said a conflict waiver would be a smart prophylactic but D.C. ethics lawyer George Clark said asking clients for unnecessary conflict waivers can be a mistake. “If you don’t need a waiver but you ask and they refuse, you’ve got bigger problems,” Clark said.

Predicting the path of a special counsel investigation is a sucker’s game. But unless someone can show Mueller and his deputies had more to do with the Kushner and Manafort representations than they and Wilmer have said, attempting to taint the investigation as conflicted seems to be a dead end.