Topic: Professions & Institutions

Explaining Ginsberg
(8/30/2004)

Ben Ginsberg, a conservative-minded attorney who is also a recognized authority on elections law, found himself in the midst of a controversy when it was discovered that he was providing legal services to the Swift Boat Veterans For Truth while also serving as counsel to the Bush Campaign. The double representation raised eyebrows because the McCain-Feingold law prevents "coordination" between the political parties and independent groups running campaign-related ads, and the Kerry campaign has accused the GOP of doing just that.

Ginsberg stated that there is nothing inappropriate about his representing both groups, and that there is no legitimate presumption that a common attorney constitutes a substantive link between two separate clients. On this he is correct beyond question. The dual representation does not constitute any kind of conflict of interest under the legal ethics rules in any jurisdiction, and the fact that he represents both the GOP and the Swift Boat Kerry attack squad could not be taken as evidence of any "coordination" under the terms of the election laws.

He is also correct that he could not inform the GOP that he had the eyebrow-raising Swift Boat vet representation without violating client confidence. So Ginsberg's conduct was pure as the driven snow, right?

Wrong! Ginsberg should have known that the dual representation would look bad and had the potential to embarrass both clients if it became public knowledge. He should have insisted that the Swift Boat veterans allow him to tell the GOP about his work for them, and if they refused, end one representation or another. In the court of public opinion, it doesn't matter that Ginsberg is on solid ground as he insists that no coordination can or should be inferred from the fact that he was advising the Bush campaign and a "527" group. It is enough that it looks fishy to the press and to the public, and gives Terry McAuliffe and Paul Begala ammunition to accuse the Republican of cheating.

Lawyers can represent any clients they want, unless the clients have directly divergent interests. No prohibition exists against representing clients with similar interests (such as grinding John Kerry into library paste), and no court has ever found that doing so justifies an assumption that the lawyer is serving as a means of coordinating the business of the two clients. But Ginsberg is hardly a political innocent, and he of all people should have known that in the current highly-charged political environment, his otherwise completely ethical representations risked embarrassment for his employers. In short, he goofed, giving us an abject lesson in why simply following the letter of the ethics rules does not always guarantee that one is doing the right thing.

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