This just in: Bush's lawyer is a slimeball

Apparently, as a legal question, it doesn’t matter. Of course Bob Perry knew that helping the Swifties was manna from heaven for the Bushiviks. He didn’t have to communicate with them, he didn’t have to “coordinate” with them, there was no chance that they would object to his activities.

Karl Rove goes into Ginzbergs office, says “Hey, how are the Swifties doing?” Ginzbergs smiles and says “Excellent! We’re shitting all over Kerry’s reputation, and the fools are buying it! BWAH-ha-ha-ha-ha!..”

That’s gloating. Not coordinating.

If Karl Rove goes into Ginzbergs office and says “We would like it very much if you could somehow get the Swifties to imply that Kerry worshipped Satan while on the Swift Boats, and sacrificed unbaptized Vietnamese babies to his Dark Lord” Ginzberg says “Sorry, Karl, can’t do that, it would be coordinating.” “Ooops, sorry, counselor, forget I said it.” “Sure thing, Karl…”

Thats not coordinating. Thats Ginzberg performing his function of preventing coordination. Chinese wall, Thai stick, Vietnamese basket trick. Something like that.

And if the Swifties, by some astonishing coincidence, happened make such allegations, but you can’t prove that they got the idea from Ginzberg…nope, no “coordination” there.

That about the size of it, Dewey?

You’re from Texas, and you don’t know what a blind pig is? I suspect that your eyes saw “Liberal”, your brain clicked immediately into hate mode, and your fingers punched out a hasty fuck-you. You’re probably doing the same thing right now. See, you can’t help but do that. 'Cause I’m a martyr. See? When I do my martyr thing, you are simply COMPELLED to be a jackass. You can’t help it. No one blames you.

Our interest in pigs is primarily gastronomic, not matrimonial.

The analogy he was drawing was a direct answer to the charge at hand: that his simultaneous representation of both parties amounted to “coordination” and thus violated the campaign finance laws. It wasn’t an “attempt to change the subject,” it was a direct response to the charge levied at him. Perhaps you should pay closer attention.

He didn’t resign because the Swifties are jerks. He resigned because the Kerry campaign was accusing the Bush campaign of violating the campaign finance laws. He rightly pointed out that, though he would resign to prevent distracting the campaign, his role was no different than his Democratic counterpart. That is a perfectly valid point to make. It is not an evasion in any way.

No.

Your hypothetical has the lawyer engaging in actual coordination ("…if you could somehow get…"). That isn’t the way a gatekeeping function works.

A better example would be Rove inquiring as to whether a certain activity is permissible (“Can I send the Swifties a case of scotch and bevy of hookers without violating the campaign finance laws?”).

Lib, I don’t know where you get these delusions of persecution from. I am not out to get you. I’ve sided with you at times. Really, take a deep breath, calm down, and step down off that cross.

In any event, this was totally unwarranted. I’ve already asked your forgiveness for misunderstanding your earlier post in support of me (frankly, I still don’t quite get it, but whatever – I guess I just don’t know the colloqualism you’re using). The classy move would be to simply grant my request and accept that as an apology. Instead, you decided to keep calling me a jackass. Which says more about you than it does about me.

Um, yeah. You’re offended by the thought?

Of course that creates an inference! That’s why Ginsberg left - he couldn’t prevent the appearance any more! You can leave your bollocks (and your pig) out of it, though.

Bzzzt. Assuming the conclusion.

Here’s a bit more on how Ginsberg came to work for the swifties and his ethical position (with links to DC bar rules):
Swift Boat Lawyer for Dodgy Ethics

Dewey, first of all, allow me to congratulate you on your new destination.

Second, the colloquialism is, “Even a blind pig finds an acorn once in a while.” Some people have been known to credit the blind pig with a truffle.

I’m not prepared to speculate as to why Liberal would be inclined to characterize you as a blind pig in this or any other instance, but the inference I draw is that, although he has done so, in the current argument he is crediting you with having found an acorn.

Never mind, I am going to speculate. I think he casts you in the blind pig role because he perceives you as an ideological ally of Bricker in the argument over whether a so-called “strict-constructionist” reading of the U.S. Constitution should prevail when a right has been called into question. Liberal, you may recall consistently takes the position that rights are unlimited (absent coercion), and are not bestowed upon us by “scribbles on a piece of paper.” He has advanced the argument in the past that taking the “strict constructionist” view is tantamount to declaring that our rights derive from the U.S. Constitution.

[/speculation]

No, I’m just clarifying the correct term. This isn’t a conflict of interest situation.

He left because it wasn’t a battle worth fighting. Do you also believe that every defendant who settles a lawsuit is guilty of some kind of wrongdoing?

More like giving the benefit of the doubt. In the absence of evidence to the contrary, the presumption should be Ginsberg acted ethically. I’ve seen nothing to rebut that presumption.

This link only proves that the authors of that website don’t have any idea how those bar rules work in practice.

They levy two complaints: First, that Ginsberg didn’t make his fee clear to the Swifties, and second that what he claims was pro bono work wasn’t really pro bono work. Both claims are stupid.

The first claim rests on the fact that Ginsberg “had yet to work out payment details” with the Swifties. This, they claim, contradicts the bar rule requiring communication of the fee or rate before or within a reasonable time after commencing representation. The rule is designed to prevent lawyers from taking on work and then whalloping an unsuspecting client with an unexpectedly large bill.

Here’s why it’s false: Ginsberg is a partner at Patton Boggs, which is a well-known, well-respected national law firm. Like most firms, they have standard billing rates for their partners and associates. That standard rate was almost certainly communicated to the Swifties when they first engaged the firm. That communication would serve to fulfill the bar rule’s requirement.

What Ginsberg is referring to is the very-common practice of reducing one’s rate from the standard for high-profile clients. “Payment terms” may mean a discount from the standard rate, or a generous repayment plan, or any other deviation from the firm’s standard billing practices undertaken in order to land a particularly attractive client (“attractive” in this sense meaning “likely to raise our profile and lead to more clients knocking on our door”). That’s called haggling over the bill, and it is no big deal.

The second claim is that Ginsberg, in suggesting that he might take the Swifties pro bono, is somehow violating a bar rule that encourages lawyers to take on poor clients on a pro bono basis because the Swifities have raised a fair bit of money.

This is a really stupid argument for them to make. The bar rule doesn’t forbid lawyers from doing free work for rich clients; it just encourages them to do free work for poor clients. There’s no way in hell that Ginsberg doing work for the Swifties pro bono would violate the DC bar rules.

If it did, a lot of lawyers I know who have done pro bono work for various museums and charitable foundations would be violating ethical rules, since those institutions have large endowments which could be partially diverted to the payment of legal fees.

So both claims are absurd. Too bad, so sad, better luck next time.

Why thank you.

So it’s sort of the equivelant of “a stopped clock is right twice a day,” eh?

Sounds like Lib is giving me some fairly backhanded “support.”

Dewey, all you’ve done in your ‘analysis’ is provide a theory as to how Ginsberg might possibly have acted within the relevant ethical guidelines. You have not proven that he did, or that even if he did, it was by anything other than the thinnest of nitpicky margins.
Until I brought it up, you failed to cite the proper references governing Mr. Ginsberg’s behavior, resorting instead to sheer bombast. Now that I have supplied the refs, you have the nerve to bitch at me for supplying them along with the only commentary on Ginsberg’s ethical position that is readily available on the net? Christ, you can be a real horse’s ass sometimes.

You have no way to know that, and it is not reasonable to infer from his action in removing himself as an apparent “coordinator”. Certainly this is a political situation more than a legal one, though, and it would help you immensely to pull your nose out of your bubble and recognize it.

This has been pointed out to you already, but you’re not in court here. “Presumption of innocence” doesn’t apply outside a criminal case. This is closer to a civil matter, where “preponderance of evidence” is the criterion. Not just a preponderance but *all * the evidence is on one side, unfortunately for your preselected position, pound the table though you will.

You’ve continued to avoid the topic of why a Bush campaign lawyer would even think of “offering his services” to a group which is required not to coordinate its efforts with the Bush campaign. It’s not hard to figure out why you’ve avoided it, though. Not all lawyers are scrupulously ethical, despite what you’d like to have us think. squink is right - you’re simply being a prick again.

My analysis ain’t nitpicky. It goes directly to the substantive points raised in the webpage you cited. Please, do tell me what part of my analysis you find suspect –

ON POINT 1:

Do you deny that Patton Boggs is a well-known national law firm?

Are you seriously contesting that such firms make their standard rates known up front, and that haggling over the final bill is commonplace?

Are you arguing that the point of the rule is anything other than to prevent clients from being blindsided by an unexpectedly large bill?

Seriously. I’ve worked on deals where the final bill wasn’t decided on until months after the deal closed. If ongoing discussions about fees are a violation of ethical rules, then every single major law firm is violating the ethical rules in its daily business. The more likely answer is that your view is bullshit.

ON POINT 2:

Are you seriously suggesting, as that web page does, that the ethical rules forbid pro bono work on behalf of clients with a certain level of assets?

If I do pro bono work on behalf of the Kennedy Center in DC, am I violating the rules of the DC bar? They’ve got plenty of money, after all. They could, if they wanted, certainly pay outright for their representation.

This claim is so mind-bogglingly stupid I can’t believe you’re clinging to it.

You still haven’t provided “proper references,” in the sense of “references that have a single goddamned thing to do with the issue at hand.” You might as well cite the Declaration of Indepenence while you’re at it.

If pointing out pesky things like “facts” makes me a horse’s ass, so be it. Your website’s commentary is crap – uninformed, unintelligent crap. Five seconds of thinking about the issue would demonstrate that.

Certainly you have no reason to know the opposite, and it is perfectly reasonable to infer that from his actions, because that kind of withdrawal happens all the time. It happens every time a defendant settles a lawsuit he knows he could probably win.

This is doubly true in political campaigns where people are routinely tossed to the side when they become a liability, regardless of whether there’s any substance to whatever accusation is being lobbed or fault on the part of the resignee. Expedience trumps perfect justice on the campaign trail.

Please do quote where I suggested we were in court, or that court-like standards need apply. You can’t, because I didn’t.

I suggested that people should be given the benefit of the doubt. That’s a good mantra even outside the courtroom.

Not so. All I see is innuendo. There is no evidence supporting your position, only spin of uncontested facts that just as easily support a benign view.

No, I’ve addressed that topic quite directly: because it can be the most effective way to assure compliance with the campaign finance laws. Basically, for the same reason I am sometimes called upon to advise both sides of a “chinese wall.”

You keep ignoring that point, but your ignoring it does not mean I haven’t addressed it. In practice, this kind of thing is both commonplace and Not A Big Deal.

Again, if raising actual facts makes me a prick, so be it. Fighting ignorance and all that.

Lawyers working on the inside of two groups who are working along parallel lines is a common occurance. As noted it happens when groups are discussing financial and merger/acquisition type transactions and it happens in politics. Here’s the theory behind the deal. The lawyer is an observer and advisor to both groups. Worst case scenario they serve as expert witnesses in any suits brought by/against one group or the other to testify that the two groups were or were not engaged in insider trading or other corporate espionage. They make excellent expert witnesses because of their extensive training in the legalities of the transactions and the jargon used to write the contracts and such. They act as a deterrent to would-be espionage efforts because if someone “figures out” the strategy of the other group to some unrealistic level of detail then it strongly points to information being illegitimately obtained. Because they are privy to the documents and strategy of both sides they can stand up and scream if they see someone in one group carrying around a copy of a confidential memo issued by the other group. This can stop collusion, or(more desirably) prevent the appearance of collusion, because they have inside knowledge of both sides. They have the knowledge needed to be able to blow the whistle if they see collusion or shady dealings by individual corporate executives. In theory they have the best interests of both organizations in mind and will blow the whistle on individual executives before they would let the whole organization be tainted by business deals brokered by corrupt executives.

None of that probably made any sense to anyone who didn’t already understand the topic. Here’s an example. Maybe it will make more sense.

Lawyer A is working for Group 1, a polical party with a candidate up for election. He also works for Group 2, a PAC with a specific message which may or may not affect the campaign of the candidate put forth by Group 1. Now, he normally sits like the wise old owl and simply listens to what the groups plan to do. He is bound by attorney-client privelege not to reveal inside information about Group 1’s plans to Group 2, and vice versa. Still that doesn’t mean he can’t blow a whistle if he sees collusion among individuals. Collusion is illegal and will screw both groups in the long run by getting the Feds involved in criminal investigations and destroying both the campaign and the PAC’s abilities to accomplish their goals of getting their candidate elected or their message out. So both of them pay Lawyer A to use his knowledge to keep them on the straight and narrow and with the understanding that it would be a professional breech of ethics for him to share this knowledge with them directly. So he is not a source of info, he is a safeguard for the entire organization to ensure individuals do not engage in corrupt collaboration.

In a nutshell, guys like Ginsberg are there to keep guys like Ken Cordier honest. Ken Cordier could have been an insider to the Bush campaign’s information/plans(with his friendship with Rove as his link) and he could have taken that info back to the Swift Boat Veterans group. Ginsberg, working for both, could recognize Cordier as posessing information which was supposed to be secret and blow the whistle. At very least he could testify to what he saw Cordier say and do which would help establish Cordier as having broken laws regarding collaboration between the party and the PAC/527. Then it is Cordier on trial, not the whole organization and they can throw him to the wolves(as he would deserve) and move forward.

Note that in the above nutshell I am not making any allegations about Ken Cordier or Ginsberg. I think it is the right thing to do to assume innocence until evidence of guilt is presented. I was merely using the real names and situation to make it as clear as possible the function of Ginsberg within both organizations.

As always IANAL and any lawyers who wish to offer comments/corrections to my layman’s understanding of the scenario are invited to fight my ignorance.

Enjoy,
Steven

I completely regret the use of the crime of insider trading as an example here. It is a terrible example of the kinds of activities a lawyer in this position is able to detect/prevent. Corporate Espionage and contract irregularities are much better examples.

Sorry about that.

Enjoy,
Steven

Thanks for the effort, mtgman (I’ll address you since Dewey is having another flashback to his schoolyard days). That role makes sense in the context you’re describing it - where there is a specific process in place, in which the goal of both sides is to *reach * some agreement. Protecting the interests of the stockholders or whoever isn’t involved, and doing so fairly, is obviously required and obviously gets tricky. Some contact and even “coordination” is obviously unavoidable in the process. No question.

But in the case of 527’s vs. campaigns, the only requirement is that *no * such agreement be reached, that *no * coordination exist. Nobody else’s interests need be protected in the course of doing so, because you’re not doing it, not legally. That’s a lot easier, and a lot simpler. It’s easiest of all if you *really * aren’t doing it and *really * don’t intend to. The Ginsberg role *only * becomes necessary if you really are doing it and need to cover yourself in case the Feds or the press comes around. There’s no need for a “gatekeeper” if there’s never a need for anything to pass through a gate, and therefore no need for a gate at all. By law, as you and I understand it, there *cannot * be, creatively case-dependent interpretations of the word “coordination” notwithstanding.

Honestly, even with Mtgman’s explanation and hypothetical scenario, I still don’t understand why an attorney has to work in both organizations to recognize when the border between them is being breached. I mean, a football ref doesn’t have to be standing right on the chalk line to see when a player’s foot is in or out of bounds on a reception. And in your example, a lawyer inside the White House doesn’t need to know fact one about the Swifties, let alone have an intimate working relationship with them, to tell Rove whether his proposed activity is legit or not.

Steven, that’s a reasonable summary.

I’d nitpick that the parties would be relying on the lawyer’s “ethical duty of confidentialty” rather than the “attorney-client privilege.” The former is a duty lawyers owe their clients. The latter is a rule of evidence for courtroom proceedings, and is much narrower in scope than the ethical duty.

Having said that, you’ve hit on a big reason why lawyers are ideally suited for this kind of gatekeeper role: we can’t, on pain of disbarment, reveal the confidences of client 1 to client 2. I’m actually annoyed with myself for not pointing that out earlier.

I would also note that “blowing the whistle” in this context would be telling the seinor management of client 1 that he’s got a renegade on his team who’s trying to coordinate with client 2, and advising him that he should take appropriate action.

Also, BTW, you’re wrong that the prevention of insider trading isn’t a good example. Not the best example, perhaps, but it does arise – a common question in that context would be a deal guy asking the lawyer what he is or isn’t allowed to discuss with a trading desk guy.
Elvis: you’re simply wrong that a gatekeeper is unnecessary. The campaign finance laws do not require that persons in 527s and persons in campaigns completely wall off all communications between themselves; it requires that they not coordinate. If a Swiftie guy called a RNC guy to ask how his kids are doing, no campaign finance laws are broken.

And so there are other things that get closer to the line. If a Swiftie travel guy calls a RNC travel guy to let him know about a good deal they got on a hotel during their last trip to a certain city so the RNC guy can book at the same place in the future, is that “coordination”? Dunno. Maybe. That’s the sort of question you’d want to ask Ginsberg.

And your whole argument falls apart when you realize the DNC and Democratic 527s share legal talent in much the same capacity. There’s a whole bunch of them, apparently.

Tell me, are the Dems sharing legal talent in this way only to because they “really are doing it” and need to cover themselves “in case the Feds or the press comes around”?

The short answer is no. They’re doing it for the same reason the Pubbies are doing it – because using lawyers as gatekeepers is a smart, prudent thing to do in a campaign under these new campaign finance laws.

Not necessarially. Here’s another real world example. I play a cardgame called Magic: the Gathering(hence the moniker). The designers of this game come out with “expansion sets” containing new cards for us to use and play with. People like me like to make up our own cards as well. Now sometimes the designers come out to tournaments or make their email addresses public and people like me want to talk with them about this really cool idea we had for a card. The problem is that, legally, them using my idea is copyright infringement and I could sue the crap out of them. So before I can talk to the designers they have to consult with their lawyers, and possibly have one sit in as a witness to the conversation between me and the designer. That way the lawyer can swear, if the company prints a card similar to my idea and I bring a copyright lawsuit, that they saw me explain the card idea to Person Q at such and such a time and such and such a date. Then they can dig back through their design documentation and present the original draft of the first version of their card idea and prove it was older than the meeting between me and the designer. Bingo, they’re off the hook, we came up with the idea concurrently, not collaboratively. In this case the lawyer provides “cover your ass” insurance for the company.

Sure, but can you guarantee that absolutely no individual working for either side will go rogue? The bigwigs who run the campaigns can’t take that risk, so they plant some guy as an observer with responsibilities to both parties to keep an eye out for leaks in the other side and raise holy hell if they see some coordination. They tell him to sit and watch and keep his mouth shut unless he’s got something to report or needs to steer a conversation away from the appearance of illegal coordination. I’d say that neither wants their effectiveness to be diminished by their staff having to prepare testimony and face subpoenas instead of calling TV stations to schedule adds or canvassing voters for support/donations.

Of course this is only my opinion of what people acting in their own rational self interest would do. People have been known to act irrationally and engage in collusion if they thought they could get away with it.

Enjoy,
Steven

On Preview: Thanks for the notes Dewey. Cervaise I think my above response to ElvisL1ves may answer your question as well. Although I would add that the boundry lines in football are much clearer and easier to spot from a distance than the transgressions of collusion or illegal coordination between groups who specialize in weaseling and spin.

It’s simply more efficient to have one guy (who’s essentially sworn to secrecy) who knows about all contacts between both sides. It allows the wall between the two parties to be more effectively policed.

In this case, there’s probably also the matter of there not being very many lawyers who practice in this area of the law, especially at a very high level. Some sharing of legal talent is probably necessary simply because there aren’t a lot of lawyers out there with the necessary expertise.

And frankly, it’s also cheaper, two for the price of one. Nothing to scoff at when you consider what partners at firms like Patton Boggs charge for their time.