Monday, July 25, 2005

On McCallum and Conflict of Interest in DOJ Lawsuit: An Analysis

A number of anti-smoking groups have been quick to attack Associate Attorney General Robert McCallum for his involvement in the DOJ litigation against the tobacco companies, implying or stating that he has a conflict of interest based on his former employment as an alleged "tobacco industry lawyer."

For example, Americans for Nonsmokers' Rights (ANR) has gone so far as to ask the public whether there is "a cancer on the Justice Department." ANR states that: "the Justice Department, led by political appointees with tobacco ties, is attempting to torpedo the case in its final hours." One of the political appointees to whom ANR refers is McCallum. So the intent here seems to be to attack McCallum for destroying the case. Elsewhere, ANR suggests that McCallum, with his "tobacco industry ties," improperly interfered in the case.

An ethics investigation has been called for, and the Inspector General will presumably conduct such an investigation.

The Rest of the Story

While I have previously explained why I find it unacceptable for ANR to publicly accuse McCallum of being a "former tobacco industry lawyer," here I discuss the actual substantive issue of the potential conflict of interest and explain why I think the anti-smoking groups' attacks are premature and unwarranted.

First, had McCallum previously represented R.J. Reynolds, then there would be a clear conflict of interest. The problem is that he has never represented R.J. Reynolds or any other tobacco company. He was a partner at a law firm that represented R.J. Reynolds in patent work, but he himself was apparently not directly involved in those cases.

So the question is a bit more complex. It really involves two issues:
  • whether or not disqualification from this case is required by virtue of McCallum's conflict with a former client; and
  • whether or not disqualification from this case is required by virtue of the subject matter of the case involving his former law firm.
1. Conflict with a Former Client

Does the DOJ case represent, for McCallum, a conflict of interest with a former client (i.e., R.J. Reynolds)?

Based on legal ethics rules and law relevant to the District of Columbia, the primary issue appears to be whether or not there is a "substantial relationship ... between the subject matter of a former representation and that of a subsequent adverse representation." [Derrickson v. Derrickson, 541 A.2d 149 (DC 1988)]

Determining whether or not there is a substantial relationship, in turn, requires a judgment of "whether the factual contexts of the two matters overlap." [Brown v. District of Columbia Bd. of Zoning Adjustment, 486 A.2d 37, 42 (DC 1984)]

Note that this determination clearly requires "an analysis of the facts and legal issues." [DC Ethics Opinion 237 (1992)]

The most important consideration appears to be "whether the lawyer was in a position to obtain confidences of the former client that could be used adversely to the former client on behalf of the new client." [DC Ethics Opinion 175 n. 2 (1986)]

So because McCallum did not individually represent R.J. Reynolds, but his previous firm did, the most important question is whether McCallum, as a partner in the firm, became aware of confidences of R.J. Reynolds that could be relevant to the current litigation. Do any of the facts made known to McCallum as a partner in the firm have relevance to the current case? If not, then it does not appear that there is any conflict with a former client.

Moreover, two things need to be true in order for this conflict to be present. First, McCallum had to have been aware of confidences or facts related to R.J. Reynolds, and second, those confidences or facts have to be relevant to the current case. From information that is currently available to ANR and other anti-smoking organizations, I do not see how such a determination could possibly have already been made.

It is not clear, in the first place, that any of the facts or issues involved in patent work for R.J. Reynolds have any relevance to the RICO case. It is equally unclear whether or not McCallum had any knowledge of the facts of the R.J. Reynolds litigation based on his position as a partner in the firm.

2. Conflict with Client of Former Law Firm

Based again on D.C. legal ethics law, it appears that four things must be true to determine that a conflict of interest with a client of an attorney's former law firm exists: "(1) the lawyer must have formerly represented the client; (2) the new matter must be the same as or substantially related to the prior representation; (3) the position of the prospective new client must be adverse to that of the former client; and (4) the lawyer must actually (not just imputedly) have learned information confidential to the former client which is material to the new representation." [DC Ethics Opinion 273 (1997)]

Once again, the key issue is whether or not the subject matter of the prior and former work overlap substantially and whether McCallum actually learned information while at his former law firm that is material to the DOJ case. And once again, it is unclear if either of these is the case.

There is one final consideration. The Department of Justice ethics manual states 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."

So the relevant issues are: (1) whether the DOJ matter involves his former law firm; and (2) how many years is "several" years?

Again, it is unclear whether the DOJ case involves the former law firm in this case, since that law firm was doing patent work and it's unclear if there is substantial overlap. But assuming that there is overlap, then the issue is how many years must go by before McCallum can become involved in matters involving his former law firm (assuming no involvement of clients he previously represented)?

There is no clear answer to this question, since "several" is not defined. McCallum joined the Bush Administration in 2001, so his involvement in the case at this time would mean four years had transpired. Is that sufficient?

I don't know, but what does seem clear is that McCallum asked the Department of Justice's Ethics Office to make an independent determination of whether he had to recuse himself from this case, and the Ethics Office apparently decided that was not required.

There are two important findings from this analysis:

First, the facts as we have them now do not seem sufficient for anti-smoking groups to be attacking McCallum for ethics violations. We simply do not have the information that is required to make such determinations. There is no obvious or inherent conflict of interest and the determination rests on specific details of McCallum's involvement in the R.J. Reynolds work at Alston & Bird, as well as the nature of that work, that are not available to anti-smoking groups. Thus, I view it as premature, and therefore inappropriate, for these anti-smoking groups to be attacking McCallum at this point in time for ethical violations.

Second, the facts as we have them now suggest that McCallum acted appropriately in seeking a determination from the DOJ Ethics Office, and since that office apparently cleared him to work on this case, he deserves the benefit of the doubt until such time as information is available that would over-ride the Ethics Office's decision.

Note that the DOJ Ethics Office is not the ultimate arbiter of the matter. However, the fact that McCallum did appropriately take his concerns to that office should have caused anti-smoking groups to hold off on attacking him until such time as information becomes available to suggest that an ethical violation took place.

As I have observed from my experience in the anti-smoking movement, many anti-smoking groups are so anxious to jump on the attack of anyone affiliated in any way with the tobacco companies that they are not willing to wait for the facts before doing so. This, I believe, is one of those cases.

The rest of the story suggests that the rules and laws governing legal conflict of interest based on conflicts with former clients or clients of former law firms need to be applied to McCallum's situation before a judgment can be made of whether he committed any ethics violation. The available information is not, on its face, sufficient to implicate him in any ethical wrongdoing. And it is not sufficient, in my opinion, to justify anti-smoking groups attacking this individual.

When the investigation into the matter is complete, Robert McCallum can and should stand in judgment. But to judge him before the relevant facts are in is unjust, inappropriate, and I believe, irresponsible for a public health organization.

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