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Harris’s Lawyer Husband Faces Ethics Quandary as VP Spouse (1)

Nov. 7, 2020, 5:38 PM; Updated: Nov. 9, 2020, 4:24 PM

Kamala Harris’s election as vice president creates a quandary for her husband about how to navigate his law career around the kinds of ethical hazards raised by the current president and his family.

The types of cases Doug Emhoff handles as an entertainment and commercial attorney aren’t likely to generate White House intrigue, but his partnership at DLA Piper poses broad conflict-of-interest questions. The firm’s federal lobbying clients including Qualcomm Inc., Comcast Corp., Raytheon Co. and the government of Afghanistan.

“The situation with the Trump family established that anything goes and nothing happens,” said Norman Ornstein, a resident scholar at the American Enterprise Institute, a free market think tank. “If we look back further or try and use a reasonable set of standards, it is a dilemma for Emhoff.”

The ethical limits for government officials’ lawyer spouses remain largely unclear, especially for vice presidents, who are not covered by many of the federal conflict-of-interest rules.

Lynne Cheney left defense contractor Lockheed Martin Corp.’s board of directors before her husband Dick was inaugurated as President George W. Bush’s right hand man in 2001. Marilyn Quayle opted against reviving her career as a lawyer—or running for office—when her husband Dan was elected George H.W. Bush’s vice president.

Emhoff took a leave of absence from DLA Piper in August, when then candidate Joe Biden named Harris as his running mate. Biden’s and Harris’s win makes her the first woman to fill the second-in-command position and sets up Emhoff to become the first man to serve in the unpaid position of “second spouse.”

Theoretically, Emhoff could take a salary only from DLA Piper and not share in any of the firm’s profits, but the perception problem would remain, according to Richard Painter, a former White House ethics lawyer in the George W. Bush administration.

“I think it would be nuts for him to stay at the firm,” Painter said. “She would consistently be faced with the allegation that people are hiring the firm to get something out of the administration.”

Representatives for DLA Piper and the Biden campaign declined to say what Emhoff plans to do.

No ‘Bright Line’

Emhoff has represented movie production houses and companies like Walmart and Merck over more than three decades. He’s more recently gone to court on behalf of an advertising agency in a multimillion dollar battle over the Taco Bell chihuahua and pursued a copyright case involving a viral New York City “pizza rat” video, among other legal battles.

Harris was California’s attorney general in 2014 when she married Emhoff, then a partner at law firm Venable. He jumped to DLA Piper in 2017, the same year that Harris became California’s junior senator.

The couple reported more than $3 million in income last year, according to a tax return made public by the Biden campaign. That includes nearly $2.8 million from DLA Piper and another $115,000 from Venable.

The federal law that sets conflict of interest standards, disqualifies government officials from certain matters and imposes criminal penalties—18 U.S.C. 208—doesn’t apply to the president and vice president. The constitutionality of enforcing other ethics laws against those officials has yet to be tested in court.

President Donald Trump has cited the limited reach of the conflicts law in response to questions about how much he has separated himself from his businesses, the use of his hotels and golf courses for government business, and the commercial activities of his daughter and son-in-law, White House advisers Ivanka Trump and Jared Kushner.

That bucked the tradition set by previous presidents, who at least made an unenforceable pledge to abide by ethics rules, according to Ornstein and Painter.

President-elect Joe Biden, center right, wife Jill Biden, right, Vice President-elect Kamala Harris, center left, and husband Douglas Emhoff.
Photographer: Sarah Silbiger/Bloomberg

Ethics rules prevent California Department of Justice attorneys from participating in matters in which they have a direct interest. It’s not clear whether Harris sat out any cases on ethical grounds during her time as the state’s top lawyer. Representatives for the California attorney general’s office declined to comment.

“As a matter of practice, neither Doug Emhoff nor the firm represented companies on matters involving Attorney General Harris,” Venable spokesman Brendan McCormick told Bloomberg Law.

Harris faced backlash for not joining a 2014 investigation by several states into multilevel marketing corporation Herbalife Ltd., which was represented at the time by Venable. The firm represented Herbalife in unrelated federal lawsuits prior to the investigation, and Emhoff didn’t work on those matters, McCormick said.

Building ‘Ethical Wall’

There are ways to minimize potential conflicts on the law firm side, like moving to a nonpartner role and creating an “ethical wall” to prevent a particular lawyer from being exposed to information about the firm’s clients. That kind of screening has gained favor in recent years at huge firms with scores of clients, Ellen Pansky, a California attorney who represents lawyers in ethics matters, said.

“A lawyer can be walled off to prevent the sharing of confidential information,” Pansky said. “There would be physical restrictions on ability to access client information and there would be a formal instruction sent to everyone in the firm that there is to be no discussion of the matter with the lawyer.”

Jon White, for example, moved from partner to an of counsel role at New York firm Cravath, Swaine & Moore when wife Mary Jo became head of the Securities and Exchange Commission during the Obama administration.

As vice president, though, Harris could potentially have a hand in a much broader array of matters than an agency head.

The ethical requirements are gray for federal government officials whose spouses are private attorneys, says Robert Rizzi, a Washington lawyer who advises political appointees. The Office of Government Ethics has opted to handle questions on a case-by-case basis and through individual ethics agreements rather than creating specific rules.

“There doesn’t seem to be a bright line that says ‘this is what you can do and this is what you can’t do,’” Rizzi said.

(Updated to include additional information on Ellen Pansky, a California legal ethics attorney. Story originally published Nov. 7.)

To contact the reporter on this story: Chris Opfer in New York at copfer@bloomberglaw.com

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