When Lawyers Sell Their Reputations (And Their Souls)Posted: March 31, 2014
A lawyer’s reputation has value. A good reputation serves as a proxy for years of hard work and success in representing clients, particularly in difficult cases. There is nothing wrong, improper or unethical about a lawyer using his or her hard-earned reputation to attract new clients in a highly competitive market for legal services.
But a lawyer needs to be very careful not to sell his soul when a potential client wants to retain his services, not for his skills and experience, but for his reputation. This is particularly true when an individual or a business retains a lawyer to conduct an internal investigation and to issue a public report of his findings and conclusions–like the report recently issued by former federal prosecutor Randy Mastro, a partner with the distinguished firm of Gibson, Dunn & Crutcher. The report ostensibly clears New Jersey Governor Chris Christie of any wrongdoing in connection with the George Washington Bridge-closure scandal.
Businesses often hire lawyers to conduct internal investigations in employment disputes and cases with potential criminal implications. In most cases, the lawyers draft a report of their findings and conclusions and submit it to the client’s board of directors. In such cases, the report is private and the company may use it for any number of legitimate purposes, including addressing internal management and personnel issues or setting litigation strategy. There is nothing unusual or improper about a lawyer performing these types of services.
Sometimes, however, the report is intended for public consumption and the client hires a lawyer with a great reputation so that the report will be “credible.” For example, in recent years institutions like Penn State and UCONN have hired high-powered lawyers from high-powered law firms to investigate serious allegations of sexual misconduct on campus and to present their final reports to the public. Public officials may employ lawyers for similar purposes, as Governor Christie did in hiring Randy Mastro, and as former Speaker of the House Chris Donovan did when he hired former U.S. Attorney and current Day Pitney partner Stan Twardy to conduct an internal investigation of his congressional campaign staff’s involvement in the “roll your own” tobacco scandal a few years back. These are the kinds of investigations of which all lawyers should be wary, for lawyers who take on these assignments risk tarnishing not only their own hard-earned reputations, but exacerbating the public’s already dim view of lawyers in general as “hired guns.” (Disclosure: A number of years ago I conducted an internal investigation for the State Elections and Enforcement Commission, which resulted in a public report.)
When lawyers are hired to conduct investigations and issue reports in such cases, almost invariably they tell the public that the client has hired them to “find the truth.” But the fact remains that the lawyer’s duty of loyalty is to the client, not to some abstract notion of the “truth.” Do we really expect a lawyer to tell the unvarnished truth if his investigation reveals that his client is a crook?
Moreover, lawyers conducting investigations in these types of cases often face a common problem–witnesses who won’t talk to them. For example, Randy Mastro and his firm interviewed dozens of witnesses, but key witnesses, like former Christie Deputy Chief of Staff Bridget Kelly, wouldn’t agree to be interviewed. Unlike prosecutors, lawyers conducting internal investigations do not have subpoena power. They cannot compel a witness to talk. And even if they could, witnesses concerned about the potential criminal implications of their testimony can always invoke their Fifth Amendment privilege not to incriminate themselves. Such gaps in the evidence can make it hard, if not impossible, for a lawyer to draw firm conclusions. Yet such gaps did not stop Mastro from concluding with great confidence that his investigation had found no evidence of wrongdoing by Governor Christie.
I don’t know whether Governor Christie did anything wrong. I do know that an investigation that did not include interviews with key individuals such as Bridget Kelly is necessarily incomplete, and no one who conducted that investigation could possibly reach a conclusion about Christie’s involvement, or lack thereof, with any degree of confidence that the conclusion was correct.
I’m not saying that lawyers should categorically refuse to conduct the kind of high-profile internal investigations that Mastro performed. But when lawyers are retained to conduct such investigations, they need to get the client to commit in writing that they (the lawyers) will have complete, total, unfettered independence in conducting the investigation and preparing the report. They need to make clear, again, in writing, that the client will have no right to edit the report before it is published. And they need to explain to the client that they can’t force witnesses to talk and that drawing firm conclusions about “what happened” may be difficult when key witness remain silent.
Did Randy Mastro sell his soul? Maybe, maybe not. Looking into people’s souls is not a skill I have developed as a lawyer. But the growing perception is that he did–for over a million dollars in fees paid by the good taxpayers of New Jersey. That perception is bad for Mastro and his client, and its bad for all lawyers.