DC Ethics Violation by Swift Boat Lawyer?

K Marx The Spot suggests that Benjamin L. Ginsberg, a partner at Patton Boggs, may have violated the ethics rules of the DC Bar in relation to his representation of the Swift Boat liars. I don't think so.

[UPDATE: On the other hand both John O'Neill and Al French look vulnerable.]

The claim rests on Mr. Ginsberg's statement to the New York Times:

Mr. Ginsberg said that he had yet to work out payment details with the group and that he might consider doing the work pro bono.

In this statement K Marx finds two possible ethics violations: one on fees, and on pro bono service. Let's start with the second, which I don't think is plausible. K Marx argues that the reference to pro bono work may be a violation of Rule 6.1 on pro bono service. I don't think so, for two reasons. First, it's obvious that lawyers may and do pro bono work for groups with money, be it ACLU or Americans for a Better Country. Second, lawyers may work for free even if it doesn't meet their obligations under rule 6.1. Third, lawyers often use 'pro bono' to mean 'free' and this is just a newspaper interview. So I think this charge has no traction.

A more plausible-seeming charge is that Mr. Ginsberg may have violated Rule 1.5(b), on fees, which requires written agreement on fees with new clients:

When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation.

K Marx notes some double-edged counter-arguments, however:

It is possible, that Ginsberg could claim that the Swift Boat veterans are simply a group of Republicans that he has represented before, but doing so would lend credence to the notion that the Section 527 group is not really independent of other groups. He could claim that late August is still within a “reasonable time” to make written fee arrangements. But, according to the group's filing with the Internal Revenue Service, it was spending and raising serious amounts of money in June 2004. Surely they had consulted with their elections law expert by then to determine whether they were within the bounds of elections law! And surely three months pushes the notion of “reasonable time” a bit much.

But all this misses the point. Not only is three months probably not nearly enough to trigger a bar investigation especially if the client is not complaining (unless there's a Bar Opinion I don't know about), but it's important to note that Rule 1.5 doesn't require a fee agreement at all. Instead it only requires that “the basis or rate of the fee shall be communicated to the client” — i.e. the hourly charges. If Mr. Ginsburg handed them a pamphlet on the firm, or sent a letter saying, “I usually charge $500 per hour but it's possible that I may discount it” that would, I think, suffice.

No, the ethics thing probably isn't going anywhere. But what I want to know is how this representation worked within Patton Boggs. Did it get cleared within the partnership? What did the conflicts checkout look like? Was this entered as a paying or free representation? If the latter, as a favor to whom exactly?

In this context it's entertaining to note this part of Patton Boggs's quote from the Insider's Guide to Law Firms:

Patton Boggs used to be known as the quintessential “Democratic” insider firm, but it has enhanced its Republican profile in the 1990s with the additions of partner Ben Ginsberg, former general counsel to the Republican National Committee and presently the national counsel of the George W. Bush for President Committee; former Congressman Greg Laughlin, Republican of Texas; and Darryl Nirenberg, former Chief of Staff to Senator Jesse Helms.

Patton Boggs is organized more like a loose collection of sole practitioners than a traditional partnership.

I wonder what the other partners think of all this…

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3 Responses to DC Ethics Violation by Swift Boat Lawyer?

  1. flenser says:

    The Swift Boat liars??

    Are you finally conceding that Kerry and his “band of brothers” are liars? About time.

  2. Chris says:

    The truth behind Kerry’s medals is not for Michael to concede or withhold. Unless you have new evidence–apart from the “testimony” of proven habitual liars and the self-interested–further questioning of Kerry’s heroism in Vietnam is pointless (and a stale topic, besides). The issue now is whether the Republican party guided/funded/coordinated with SBVT in its slander campaign, in violation of the law, and what (if anything) ought to happen to those doing the coordinating.

  3. However sneaky this is (and admittedly I may be biased from Ginsberg’s work in the 2000 election…) I have to agree I don’t see the ethics violation. Ginsberg was clear he had no payment plan worked out, a necessary precursor to a written fee agreement. And as for the pro bono rule, I hesitate to even call it a rule. More of a suggestion that lawyers try to help the indigent. Not a requirement they be paid for everything they do.

    However, as to DC Bar Rule 7.1(b)(3), prohibiting the seeking of a client who “is apparently in a physical or mental condition which would make it unlikely that the potential client could exercise reasonable, considered judgment as to the selection of a lawyer,” there may be an issue…

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