Friday, June 17, 2005

Associate Attorney General Robert McCallum Charged with Conflict of Interest

A number of anti-smoking groups were joined by Congressmen Waxman and Meehan and by Ralph Nader in charging Associate Attorney General Robert McCallum with a conflict of interest violation in his involvement in the Department of Justice's tobacco lawsuit. McCallum, a political appointee, was primarily responsible for the Justice Department's decision to request a $10 billion smoking cessation remedy for future smokers, rather than a $130 billion program for current smokers, as originally proposed.

The conflict of interest charge has two main grounds:
1) Before his appointment to the Justice Department in 2001, McCallum had been a partner at Alston & Bird, an Atlanta-based firm that has done trademark and patent work for R.J. Reynolds; and
2) In 2002, McCallum signed an administration amicus brief urging the Supreme Court not to consider an appeal by the government of Canada to reinstate a cigarette smuggling case against R.J. Reynolds that had been dismissed.

Nader's complaint states that McCallum violated DOJ ethics rules stating that: "If you are an attorney, you will have to disqualify yourself in cases you handled before entering the Government, and from other matters involving your former law firm or clients for a certain period, usually several years." Nader's complaint does note that an employee is permitted "to participate in a matter about which he has an apparent conflict if he is authorized by an appropriate agency designee."

Congressmen Waxman and Meehan's complaint states: "We ask you to investigate the role of Associate Attorney General Robert D. McCallum, Jr., a former tobacco industry lawyer, in this surprising reversal." It also states that: "prior to joining the Justice Department, Mr. McCallum ... had signed a Supreme Court brief on behalf of the company [R.J. Reynolds]."

The Rest of the Story

Although anti-smoking groups have been quick to attack McCallum for violating ethics rules by participating in the case, it is not clear at this point whether a conflict of interest exists and whether McCallum violated ethics rules in failing to recuse himself from the tobacco case.

First, the simple fact that McCallum previously worked for a law firm that represented R.J. Reynolds in patent and trademark work does not necessarily mean that there is a conflict of interest in his participation in any tobacco case in the future. According to the information that has been made available, McCallum has never represented any tobacco company. The fact that he worked for a firm that represented R.J. Reynolds certainly does disqualify him from participating in any and all tobacco litigation while employed at the firm, but once he leaves the firm, the question becomes: Does the matter at hand involve his former law firm and how long has it been since he left the firm?

The fact that his former firm did patent and trademark work for R.J. Reynolds may or may not mean that the DOJ tobacco litigation matter involves Alston & Bird. Had McCallum represented R.J. Reynolds, this would be a no-brainer. But simply working for a firm that represented R.J. Reynolds in matters that may actually be unrelated to the subject matter of the litigation in question (I'm not aware that it involves any issues of trademarks or patents) is something that I think would require a very serious examination by an ethical body within the Department of Justice in order to either clear or disqualify McCallum from participation in the case.

The fact of the matter is that McCallum apparently did seek guidance from the DOJ's Ethics Office, and received clearance to participate both in the smuggling matter and in the tobacco lawsuit. By seeking clearance before participating in these cases, McCallum acted, I think, appropriately. It still does not mean that there is not a conflict of interest, because it is possible that the Ethics Office made an erroneous decision. However, I think that if McCallum was cleared, he was cleared, and until more information is available that bears on the specific details involved, it is premature to attack the man for violating conflict of interest ethics rules. Again, I'm not saying he's innocent, I'm just saying that more detailed information is necessary to make a judgment about whether his former employment with a firm that represented R.J. Reynolds in patent work represents a disqualifying conflict of interest.

The key issue really hinges upon the question of whether or not the tobacco litigation matter involves his former law firm. I just don't know enough about the specific work of Alston & Bird in prior and current tobacco cases to be able to make that determination. I don't have enough information, and I wouldn't presume to be knowledgeable enough to be the one to make a determination of whether McCallum should be cleared or disqualified from the tobacco case.

My basic feeling here is that while an investigation into the matter is certainly warranted, it is premature to be attacking McCallum for ethics violations. After all, he complied with DOJ ethics rules (as far as I can tell) and sought Ethics Committee clearance and obtained it prior to participating in any tobacco-related case.

But there is one thing that I think is clear. The Waxman and Meehan letter presents some very misleading, if not inaccurate, information.

Number one - the letter states that McCallum is a "former tobacco industry lawyer." This is not true from what I can tell. So far as I can tell from the available information, he has never represented R.J. Reynolds in his life. When he worked for Alston & Bird, he apparently did not represent R.J. Reynolds in any of his work. And since working for the Justice Department, he obviously has not represented R.J. Reynolds.

Number two - the letter states that prior to coming to the Justice Department, McCallum "signed a Supreme Court brief on behalf of the company [R.J. Reynolds]." This appears to be inaccurate or at least misleading on two accounts. The amicus brief he signed pertains to work he did for the Department of Justice, not Alston & Bird. And he did not sign the brief on behalf of R.J. Reynolds, he signed it on behalf of the Department of Justice.

There is a serious concern about whether McCallum's work on the smuggling case represents a conflict of interest as well - but he was apparently cleared for that case. I certainly think investigation is warranted there as well. But again, I would want to see all the information that the DOJ Ethics Committee had available before making an ethics determination.

Whatever the seriousness of any ethics violations McCallum committed may be, it does not justify misleading the Inspector General (or possibly, presenting inaccurate information) in order to attempt to indict McCallum. He certainly deserves a hearing based on factual information.

The rest of the story reveals that there is a very serious concern about the possibility that Associate Attorney General Robert D. McCallum, Jr. committed a severe ethics violation by participating in the DOJ tobacco case and/or the earlier tobacco smuggling case. However, the issue is a bit more complex than some anti-smoking groups and others have led us to believe. He was not, as two Congresspersons claimed, a tobacco industry lawyer, according to the best available information that I can obtain. And he never represented R.J. Reynolds or filed any brief on the company's behalf (again, as far as I can find with available information).

There is no question that an ethics investigation is warranted. However, since McCallum was cleared by the DOJ Ethics Office, it is appropriate to wait until the facts are available before attacking him for ethics violations.

Finally, none of this really addresses the issue of whether McCallum's insistence on a forward-looking smoking cessation remedy rather than a backwards-looking remedy was due to a desire to protect the tobacco companies or a desire to present a case that was legally appropriate (i.e., consistent with the law of the land as interpreted by the appellate court for the case).

UPDATE (June 17, 2005; 2:00 pm): In a letter to the editor in today's New York Times, Department of Justice public affairs director Tasia Scolinos denies anti-smoking groups' and Times editorial accusations that there was political interference in the case. She explains that ethics rules regarding lawyers who previously worked on tobacco cases were followed: "You suggest that there was inappropriate political influence in this decision-making. But department ethics clearly state that any and all lawyers who formerly worked on tobacco litigation must recuse themselves from this case, and we have abided by these requirements." It sounds like this statement is arguing that since McCallum never represented any tobacco company, he is not necessarily required to recuse himself from the case. The issue is more complex than this, and it does involve a consideration of whether the tobacco lawsuit involves his former law firm in any way. But that's exactly the point. This is at least somewhat complex and further information is needed to make a proper judgment. McCallum may well be guilty of violating ethics rules, but public health groups need to wait for the necessary information before rushing into personal and political attacks.

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