Thursday, July 28, 2005

More on McCallum and Conflict of Interest: If Anyone has a Grievance, It's R.J. Reynolds

A number of anti-smoking groups have accused Associate Attorney General Robert McCallum of a conflict of interest in becoming involved in the DOJ's lawsuit against the tobacco companies after having served as a partner for a law firm that did patent work for R.J. Reynolds. In my analysis of this potential conflict of interest, I concluded that the issue is far more complex than these groups have made it out to be and that it is premature to be making such a claim.

What few people may realize is that in this situation, the primary concern about a potential conflict of interest is that McCallum may have become aware of confidences of R.J. Reynolds that could potentially aid the opposing party (the DOJ) in its litigation against the tobacco company. So in fact, if there is a grievance based on this type of conflict of interest, it is R.J. Reynolds who would have the legitimate complaint.

The conflict of interest rules relating to representation of a party in a matter related to that affecting a former client are primarily designed to prevent the former client from harm due to the attorney being able to use confidential information to aid the lawsuit against the former client.

The District of Columbia Rules of Professional Conduct related to conflict of interest based on a former client state that: "A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation." (Rule 1.9 - Conflict of Interest: Former Client)

So the concern here is that the lawyer's participation in the case may be unfair to the former client, not that the lawyer will somehow harm his current client by virtue of having previously represented the opposing party. The rules do not, in fact, bar the attorney from involvement in matters in which he is representing a party whose interests are the same as those of the former client.

What the anti-smoking groups are really concerned about here is potential bias on the part of McCallum based on his having worked for a law firm that represented R.J. Reynolds. There is a conflict of interest rule that relates to the possibility that a lawyer may have a personal bias in the case: A lawyer must not represent a client if "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." (Rule 1.7 - Conflict of Interest: General Rule)

So the question is whether or not McCallum's professional judgment on behalf of the government reasonably may be adversely affected by his previously having worked at a law firm that represented R.J. Reynolds in patent issues.

Now "reasonably" here denotes "the conduct of a reasonably prudent and competent lawyer." On its face, it seems to me that the mere fact that a lawyer previously was a partner at a law firm that did patent work for R.J. Reynolds would not adversely affect the judgment of a reasonably prudent and competent lawyer on behalf of the government in a RICO lawsuit against R.J. Reynolds and other tobacco companies.

I'm not stating that there is definitely not a personal interest in tobacco that could adversely affect McCallum's judgment as an advocate for the government's interests in this case. I'm just stating that there is nothing that, on its face, indicates that his judgment would be adversely affected by his prior employment.

Once again, more detailed facts are needed to make such a determination. But the fact that McCallum sought guidance from the DOJ Ethics Office certainly seems like an appropriate action and the fact that the DOJ Ethics Office cleared his participation should carry the day until such time as more information reveals that there is reason to believe that there are personal interests that would affect McCallum's judgment on behalf of the Department of Justice.

I'm not concluding that there is no conflict of interest or bias present in McCallum's involvement of the case. I'm just demonstrating that the issue is far more nuanced than anti-smoking groups have led us to believe.

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