The Ethics Complaint Against Kellyanne Conway

It’s rare that the filing of an ethics complaint makes the news.  However, that’s exactly what happened last week when a group of law professors filed an ethics complaint against Kellyanne Conway.  And, I found a way to relate the complaint to Vermont.  Bear with me.

The complaint alleges that Ms. Conway violated Rule 8.4(c) of the D.C. Rules of Professional Conduct.  The rule states that “[i]t is professional misconduct for a lawyer to [e]ngage in conduct involving dishonesty, fraud, deceit or misrepresentation.”  By way of summary, the complaint alleges that Ms. Conway violated the rule by:

  • in an interview with MSNBC, justifying President Trump’s executive order on immigration by referring to the “Bowling Green Massacre” when she knew there was no such massacre; and,
  • in the same interview, falsely stating that President Obama had “banned” Iraqi refugees for 6 months following the “Bowling Green Massacre”; and,
  • putting forth “alternative facts” about the size of the crowd at President Trump’s inauguration.

Finally, the complaint alleges that Ms. Conway violated the federal government’s conflict of interest rules by using her position to endorse Ivanka Trump’s products during an interview conducted in the White House briefing room.

Addressing the allegations in reverse order, the New York Times ran this piece on Conway’s endorsement of Ms. Trump’s product line.  Fashionista, a sister-site to Above The Law, posted a blog calling the endorsement “pretty illegal.

The federal government’s internal ethics rules, however, are not my bailiwick. So, back to the allegations that Conway violated Rule 8.4(c).

The National Law Journal suggests that the investigation of the complaint against Conway might take a long time.  Regardless of how long it takes to investigate the complaint, at least 2 law professors have voiced strong opinions that it should not result in discipline.

Over at Slate, Steven Lubet, wrote that “[a]s a liberal Democrat, I have no sympathy for Conway’s habitual disregard for truth. As a professor of legal ethics, however, I think this complaint is dangerously misguided and has the potential to set a terrible precedent.”  His rationale is here.

Jonathan Turley, a law professor at George Washington, wrote that he  “fail[s] to see the basis for a formal ethics charge based solely on the product endorsement and view[s] the other references as bordering on frivolous as the foundation for an ethics complaint.” His entire blog entry is here.

  • Disclosure: I attended GW Law. Professor Turley taught my property law class. As he notes, he also taught Ms. Conway.  I did not know her. Professor Turley’s blog indicates that she graduated in 1995.  However, a classmate told me that she was a year ahead of us. I graduated in 1993. And, per her Wikipedia page, she graduated in 1992.

Vermont’s Rule 8.4(c) is identical to D.C.’s.  Interestingly, in their complaint against Ms. Conway, the professors noted that “[g]enerally speaking, we do not believe that lawyers should face discipline under this Rule for public or private dishonesty or misrepresentation unless the lawyer’s conduct calls into serious question his or her ‘fitness for the practice of law.’ ”  (emphasis added).  

Why is this “interesting”?  Because it’s almost exactly what the Vermont Supreme Court has said. Bear with me some more.

In addition to Rule 8.4(c)’s prohibition of conduct involving dishonesty, fraud, deceit and misrepresentation, Rule 4.1 states that “[i]n the course of representing a client a lawyer shall not make a false statement of material fact or law to a third person.” If a lawyer vioalates Rule 4.1 by making a false statement of material fact, the lawyer must also violate Rule 8.4(c) by engaging in conduct involving dishonesty, deception, and misreprentation, right?

As regular readers of the Five for Friday ethis quiz know, WRONG!  See, Week 59, Question 3.

The Vermont Supreme Court has addressed the question.  The Court’s decision is here.  It appears at 2009 VT 115.  The Court stated:

  • “If Rule 8.4(c) is interpreted to automatically prohibit ‘misrepresentations’ in all circumstances, Rule 4.1 would be entirely superfluous.  There must be some meaning for Rule 8.4(c) independent of Rule 4.1 –  for we presume that the drafters meant every rule to have some meaning.”  (emphasis in the original).

Thus, the Court limited Rule 8.4(c) to misrepresentations that “reflect adversely on a lawyer’s fitness to practice law.”

Sound familiar? It should.  It’s exactly what the law professors said in the complaint that they filed against Ms. Conway.  And I think I know why they said it.

In reaching its decision that Rule 8.4(c) is limited to misrepresentations that adversely reflect on a lawyer’s fitness to practice, the Vermont Supreme Court cited to, among other sources, an advisory ethics opinion from, that’s right, the District of Columbia.

It’s D.C. Bar Ethics Opinion 323.  Here’s the conclusion:

  • “Lawyers employed by government agencies who act in a non-representational official capacity in a manner they reasonably believe to be authorized by law do not violate Rule 8.4 if, in the course of their employment, they make misrepresentations that are reasonably intended to further the conduct of their official duties”

To their credit, the professors who filed the complaint against Ms. Conway cited to Ethics Opinion 323.  However, citing to the ABA Model Rules, the professors stated that they filed the complaint as a result of their belief that “lawyers in public office – Ms. Conway is Counselor to the President – have a higher obligation to avoid conduct involving dishonest [sic], deceit, fraud, deceit or misrepresentation than other lawyers.”

Where am I going with all this? Nowhere. Just thought I’d fill you in on the world’s most famous ethics complaint and its connection, however slight, to Vermont.