Oh Noes! It’s Possible Ethics Woes!

Looks like some questions are being raised about Mark Gitenstein’s lobbying ties and the potential conflict of interest it might present in helping select federal judges at the Office of Legal Policy:

The likely nominee to head Justice’s Office of Legal Policy, Mark Gitenstein, worked as a lobbyist for the chamber between 2000 and 2008, helping his firm earn more than $6 million in fees, according to federal lobbying records. The business alliance has pushed the White House and Congress to appoint judges and enact legislation that would make it harder for plaintiffs to sue large corporations and collect large damage awards, raising concerns from some activists.

Gitenstein, a partner at the Mayer Brown law firm in Washington, was a longtime senior aide to Vice President Joe Biden. In recent years, he also has served as counsel to the chamber’s Institute for Legal Reform, which pushed for changes in federal litigation rules and adding business-friendly judges to state courts.

But that’s not the interesting part. It starts getting amusing when the defense mechanisms kick into gear:

If nominated, Gitenstein would require a waiver from the ethics rules. The White House has already acknowledged the need to exempt several high profile positions, including that of William Lynn III, recently a lobbyist for defense contractor Ratheon Corp., who was named to the No. 2 job at the Pentagon….

"If we are going to disqualify every lawyer from defending corporate clients, that is going to cut quite a swath through the bar association. Where he needs to recuse himself, Mark has said he will recuse himself, consistent with the Obama policy," said Connaughton, who is chief of staff to Biden’s replacement from Delaware, Sen. Ted Kaufman.

"I know people have objections to his clients," said one Justice Department official. "But if he ends up being nominated and is confirmed, he will not be involved in any of the areas on which he lobbied for two years.

Oh, no you didn’t.

It’s one thing as an attorney to represent the interests of your client on a particular legal matter in a court of law, where each side of a legal matter should have effective representation in order to properly litigate and reach a just result.  

But lobbying for a client? That’s not the same at all.

That requires you to actively try to wedge your client’s interests ahead of everyone else’s. And help them figure out a way to most effectively target the weak spots in government, throw their money toward receptive targets, glad-hand at The Palm and grease whatever skids need greasing.

Especially if what you are greasing for is tort reform in a town that’s run by special interests who litigate their own interests aggressively.

Riddle me this, Jeff Connaughton: how in the hell, in selecting potential candidates for federal judgeships, would Mark Gitenstein NOT be considering matters involving litigation and the resolution thereof?

Because you just said he wouldn’t be touching anything that he’d previously been involved in…well, tort reform is pretty much the whole civil shebang.  So how would he advise President Obama about judge candidates without looking at their history on litigation issues and theories about handling civil matters? Hmmmmm?

I can deal with a lot of condescending crapola, but you act as though we have no concept of legal practice out here in the real world. I know a skid greasing when I see one.

Golly, who could have possibly predicted this would be an issue?

Try thinking four or five steps ahead, and about what’s in the whole public’s best interest instead of just what you’d like for your pals. Gets you a helluva lot further in the long run.

(H/T to Dave Johnson on the LATimes article spot.)

30 Responses to "Oh Noes! It’s Possible Ethics Woes!"
Peterr | Friday February 6, 2009 09:21 am 1

Try thinking four or five steps ahead . . .

I’d be happy if they’d think one or two steps ahead. IANAL, but even I could see this was a problem.

puravida | Friday February 6, 2009 09:28 am 2

Nice new digs, Redd (can I still call you that?)!

Looks like I’ll (gladly) have to add another new stop on my daily morning toobztour.

Christy Hardin Smith | Friday February 6, 2009 09:30 am 3
In response to Peterr @ 1

Yeah — you’d think that this would be an obvious issue that they might have wanted to address up front and in public, at the very least. Wouldn’t you?

In legal parlance, it’s called sponsorship strategy — you tell the jury about the weakness in your case up front, before opponents have an opportunity to define it for you. Takes the sting out of things at the outset and allows you to paint a particular problem in your best light rather than as something you were trying to hide.

That’s always worse. Always. You’d think a lawyer would know that up front, wouldn’t you?

dosido | Friday February 6, 2009 09:30 am 4

Good Lard, as if we didn’t have enough of the corporatist attitude in government for the last eight years. This is not change I can believe in. Who is really choosing these people?

More beltway myopia?

Christy Hardin Smith | Friday February 6, 2009 09:31 am 5
In response to puravida @ 2

Glad you like it — I absolutely love how everything turned out with this. You would not believe how much work goes into getting a page to look this clean. *g*

Peterr | Friday February 6, 2009 09:33 am 6
In response to Christy Hardin Smith @ 3

I think the problem for this particular lawyer might be that they could have handled the first part of that strategy — tell the jury about the weakness up front. It was the “paint a particular problem in your best light” thingy that they couldn’t figure out.

What, exactly, would be the “best light” about an appointment like this?

In this case, that’s a tough one, even for a good lawyer.

behindthefall | Friday February 6, 2009 09:35 am 7

Very, very nice site design, and wonderful to have a place to come to to read your entries.

Christy Hardin Smith | Friday February 6, 2009 09:36 am 8
In response to behindthefall @ 7

Thank you — I just love the look we were able to achieve with this. Calm, yet kick ass. *G*

Arbusto | Friday February 6, 2009 09:38 am 9

Whew; I was worried for a bit after 11.02.08, that politics in DC might actually trend towards the citizenry. This is a load off my mind (what is left of it). The more things change, the more they stay the same.

Good job Barack!

diablesseblu | Friday February 6, 2009 09:40 am 10

I’m confused re DC law firms and their practices. There seems to be no line in the sand re defending corporate clients as opposed to lobbying for them.

Personally I got a queasy feeling when I saw that non-attorney Daschle is working for Alston & Bird. It appears as if law firms are using corporate lobbying fees to bolster their bottom lines….traditional canons be damned.

noonan | Friday February 6, 2009 09:42 am 11

DiFi says she has doubts about the Stimulus Bill working…
“While we dither, Rome burns”

Stimulus is not a tax package, tax cuts are not a stimulus, but they are 40% of this package.

Christy Hardin Smith | Friday February 6, 2009 09:52 am 12
In response to diablesseblu @ 10

Part of the confusion, I think, has to do with registration laws wherein lawyers who advocate for a client with regard to lawmaking are required to register as lobbyists and report fees as lobbyists under designated circumstances. It’s not always what we think of as lobbying in a bad way, either — corporate clients have interests that are good for their business but not bad for the public’s interest, environmental clients have interests in land use or water regs, just as a couple of examples.

It’s one thing to advocate for a client in court and in Congress on a particular issue where they have legal exposure out the yin yang and you are asked to give congressional testimony, etc.

But what Gitenstein was doing for the Chamber of Commerce, for example, was actively and aggressively lobbying for changes in the civil litigation system — for tort reform. He also lobbied for AT&T during the FISA mess timeframe, as another example.

Now he may be a swell fella who is on the up and up and wants to do good for the public — I don’t know him personally and can’t tell you from personal knowledge one way or the other. But the public has an interest in judges who are going to uphold the rule of law and precedents, and we also have a right to know exactly where Gitenstein stands on these issues and how his thought process in recommendations would go…precisely because he comes to the table with some potential conflicts of interest that are so apparent at the outset.

And because there has been no effort at a public explanation other than “shame on you for asking questions” — I’m less than convinced this is a good idea. To put it mildly.

Adie | Friday February 6, 2009 10:08 am 13

Reality raises its ugly head at every step in the process of governance.

I keep wondering if, waiver thorn patches or not, simply having at the helm an exact opposite of the inept disaster that was dubya/cheney WILL make a difference in what constitutes “business as usual”.

Just call me a dreamer. If it works out for the better, I shall desire a change to the title of “sage”. *g*

demi | Friday February 6, 2009 10:10 am 14

Hope this is the correct address for this delivery:

Christy! Very good news indeed. Happy for all of us, mostly you.
You and your site are Easy On The Eyes.
Love it.

Adie | Friday February 6, 2009 10:11 am 15
In response to noonan @ 11

there are hedge funds, and then there are hedged bets. Make up yer mind DiFi. Is it is, or is it ain’t?! Is she with the team or is she out for herself?!

demi | Friday February 6, 2009 10:11 am 16
In response to demi @ 14

That didn’t work…Here’s your delivery:

oldnslow | Friday February 6, 2009 10:11 am 17

It seems like just yesterday you were but a commenter named reddhead. (sniff, tear wipe…. they grow up so fast)

Seriously, the contribution you personally have made with your writing to my education on the things you so clearly care so much about is imearsurable. Thanks and congrats on the new digs. Yet another banner day for FDL.

Christy Hardin Smith | Friday February 6, 2009 10:13 am 18
In response to demi @ 16

Oh, how lovely! Thank you!

It’s been ages since I’ve gotten flowers. That was very sweet!

Christy Hardin Smith | Friday February 6, 2009 10:13 am 19
In response to oldnslow @ 17

Thanks much. Really appreciate it!

demi | Friday February 6, 2009 10:15 am 20

You’ll notice the empty space between the rows. That’s for your expanded vegie garden.
And, you are very welcome.
Oh, Happy Day.

Christy Hardin Smith | Friday February 6, 2009 10:22 am 21
In response to demi @ 20

Good idea on the rows. I’ve recently decided that I can tuck in some swiss chard among my flowers as a splash of color that will be really nutritious, too. Along with some lovely green herbs and perhaps a few flowering scarlet runner beans, it will be quite the eyeful this year.

macaquerman | Friday February 6, 2009 10:29 am 22

Would it be inappropriate to find a federal judge to leave the bench and assume the post?

demi | Friday February 6, 2009 10:31 am 23

I’ve got the day off, so I’m going to go buy some seeds to start in the kitchen. I’ve got 5 big bay windows in there, so it’s a good place for seedlings.
I started a temp job last week, making cold calls – yuck and not exactly fun, but for MDA (Muscular Dystropy Association) so it’s for a great cause and the hours are 9 – 4, so that leaves me plenty of time for mommy time and work around the house, including this welcoming site.
Now, I’m off to shop and then turn the kitchen into a green house. I’ll let you know what I end up with on tomorrow mornings thread.
Again….wooo hoooo.

Christy Hardin Smith | Friday February 6, 2009 10:31 am 24

OTOH, instead of my usual scarlet runner or kentucky wonder pole beans, these look like a gorgeous change of pace

demi | Friday February 6, 2009 10:34 am 25

I think I mentioned this to you a long time ago…but here’s a link for Bean Tee Pee Pole:

Sixty Something | Friday February 6, 2009 10:38 am 26


Love the site! More of Christy is a very good thing!

Christy Hardin Smith | Friday February 6, 2009 10:40 am 27
In response to Sixty Something @ 26

Thanks — hope you continue to feel that way. *g*

Teddy Partridge | Friday February 6, 2009 10:48 am 28

Wow, Christy, nice crib. This is terrific!

I will never understand why the lawyers’ guild thinks it gets a pass on the “who’d you work for?” question. Where one’s income comes from, and how one earned it, seem to me to be a straightforward question. It’s something everyone else has to answer when applying for a job.

It’s a question our new President promised would be uppermost in his mind when he hired public servants.

If a lawyer thinks representing — or lobbying for! — a particular client might prove a detriment if pursuing public service in the future, that lawyer can always say no. There’s no shortage of other lawyers, at least in America. Nobody will lack for representation. Nobody will lack for a lobbyist, either.

bobschacht | Friday February 6, 2009 11:08 am 29

I like your new digs. My only problem is that on the main FDL menu bar, you’re too far to the right! [I’m fishing for a snarky comment to make about that, but I can’t think of a good one.]

I’d like to re-position your button on the menu bar over to the left, next to emptywheel. Is there a way I can do that?

Thanks for all you do,

Bob in HI

SunnyNobility | Saturday February 7, 2009 12:24 am 30


I’m really old school on this issue – it pushes a hot button. Need to consider your points and think it through before commenting.

(My gut says it’s a matter of principle…. and the president well understands that)

Sorry but the comments are closed on this post