The United States Law Week

Trump Org Ties Aren’t Ethics Issue for House Aide, Experts Say

March 1, 2019, 9:55 AM

An attorney’s work for House Judiciary Committee Democrats investigating the Trump Organization likely doesn’t pose a conflict for his law firm, Kramer Levin, even though it’s done work for the real estate powerhouse, ethics experts say.

The Trump Organization is demanding that the panel stop investigating it because Barry H. Berke, a partner at the New York-based firm, is now a “consulting counsel” with the panel.

“This state of affairs violates recognized ethical obligations and irreparably taints the committee’s work,” Trump Organization attorney Alan S. Futerfas said in a letter to Judiciary Chairman Jerry Nadler of New York.

Democrats have ramped up their investigations of Trump policies, business, and other controversies since taking over the House in January.

Conflicts Feud

The firm in a statement called the Trump Organization’s accusations “baseless.”

“Mr. Berke’s work for the Committee is in his personal capacity and not on behalf of the firm, which will receive no compensation for Mr. Berke’s services or provide any legal or other support,” the firm said.

It added that none of its attorneys are working on Trump-affiliated matters and that no such work done in the past is related to Burke’s committee work.

An emailed statement from the Trump Organization contended that the real estate company is in fact a current client of Kramer Levin’s.

The House Judiciary Committee did not respond to request for comment.

Factors to Consider

The answer to the conflict question depends on two factors. One, whether the Trump Organization is a current client of the law firm and two, whether Berke’s committee work is related to the firm’s past work for the organization, said Richard W. Painter, a former ethics official in the George W. Bush administration and a legal ethics professor at the University of Minnesota Law School.

If what the firm said about none of its lawyers being involved in these matters is is true, “I don’t believe that Berke’s work at the House Committee violated a loyalty duty to the Trump Organization,” said Stephen Gillers, a legal ethics professor at New York University Law School.

There are caveats to the conflict question, however.

Even if the organization is a former client, Berke has to make sure he doesn’t disclose to the committee any information the firm learned about the Trump group during its representation, Gillers said.

“To ensure that there is no threat to that information, Berke should be shut out of access to firm files” relating to the representation, he said.

And Berke can’t work for the committee on a “same or a substantially related matter” that the firm worked on for the Trump Organization where the committee’s interests are “materially adverse” to those of the organization, said Dennis Quinn an attorney with Carr Maloney in Washington, whose practices includes ethics counseling.

Painter said the Trump Organization provided no evidence that anything the firm did for them in the past is at all related to anything the House Judiciary Committee is going to be looking at.

If the facts change and the House gets information that relates to Kramer Levin’s past work, he noted, then the issue can be revisited at that time.

“And if The Trump Organization thinks there’s a conflict, they can tell us what it is,” he said.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at mstanzione@bloomberglaw.com

To contact the editor responsible for this story: Rebekah Mintzer at rmintzer@bloomberglaw.com

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