BY BETH FRANCE
Counsel, American Oversight

Before President Trump tapped William Barr as his nominee for U.S. attorney general, he reportedly considered Barr for a very different post: leading his defense team. While much of the focus has been on whether Barr, under government ethics rules, should recuse himself from the special counsel investigation into Russian election interference, less attention has been paid to whether another set of rules — those of the District of Columbia Bar, modeled on American Bar Association (ABA) standards — could disqualify him from overseeing that investigation.

Barr allegedly spoke to the president and his top advisers at least twice — in 2017 and again in 2018 — as they attempted to recruit him to the president’s personal defense team. In his confirmation hearing on Tuesday, Barr admitted that he had spoken with both Ambassador David Friedman and Trump about the possibility of representing Trump personally, and that he had discussed Special Counsel Robert Mueller’s investigation with the president or White House officials.

The public already had ample cause for concern with the president’s decision to hand control of the Mueller investigation to a vocal supporter of the president’s actions — even those under the shadow of the investigation, such as the firing of FBI Director James Comey. Barr’s unsolicited 19-page memo criticizing the Mueller investigation heightened those concerns. The revelations that Trump attempted to recruit Barr further call into question where Barr’s loyalties as attorney general would lie.

Switching sides in an ongoing criminal proceeding — as Barr would essentially be doing with regard to the Mueller investigation — is ethically fraught. Lawyers cannot simply delete client confidences from their memories when they shift from defense to prosecution, where divulging them could harm their former clients. And even if a lawyer avoids the temptation to misuse that information (consciously or otherwise), the taint of ambiguous or even divided loyalties threatens the integrity of the proceedings.

Rules of professional conduct governing lawyers seek to avoid these hazards, even when a formal attorney-client relationship has not been established. Risks emerge early and can develop as soon as prospective clients begin discussions with potential lawyers. Under the ABA’s Model Rule 1.18, consultations “about the possibility of forming a client-lawyer relationship” initiate a “prospective client relationship,” which triggers ethical obligations for the lawyer. Specifically, the lawyer must maintain the confidentiality of information that a prospective client shares, and the lawyer may be disqualified from representing a different client “with interests materially adverse to those of the prospective client in the same or a substantially related matter.”

In some jurisdictions, the disqualification requirement kicks in when the prospective client shares information that would be “significantly harmful to that person in the matter” at issue, while other jurisdictions, including the District of Columbia, require disqualification if the lawyer has received any “confidence or secret from the prospective client.” Once a conflict arises between a former prospective client and a new client, the lawyer can only continue to represent the new client after obtaining informed consent from both.

Rule 1.18 presents a real problem for Barr’s participation in the Mueller investigation as attorney general. Under the rubric of the rule, Trump (in his personal capacity) could qualify as a “prospective client” and the U.S. government (via the Mueller investigation) could qualify as the “new client.” Depending on the nature of Barr’s exchanges with Trump and members of his team, Barr may be prohibited from switching from Trump’s side to the government’s side without obtaining informed consent from both.

The details of Barr’s flirtation with Trump’s legal team remain sketchy, but the available information provokes a credible concern that under the above framework, he may be ineligible to represent the U.S. government in the Mueller investigation. Confirming Barr as attorney general would hand him responsibility for the very same matter for which the president once sought his aid, and one in which the Justice Department’s and the president’s interests are manifestly “materially adverse.”

Although Barr told the Senate Judiciary Committee that he was reluctant to enter the “meat grinder” of Trump’s defense, he acknowledged that he discussed the possibility of forming a lawyer-client relationship with the president, as well as with other officials, and that those discussions involved talk of Robert Mueller. Barr’s vague claim that they “discussed the Mueller investigation, but not in any particular substance” does not resolve these ethical concerns—especially in light of his admission that he shared his lengthy, substantive memo criticizing the investigation directly with the president’s lawyers. Courts have found that a “prospective client” relationship can arise when parties engage in discussion of legal theories, evaluation of the strength or weakness of various legal positions, exchange of sensitive information about the facts and events underlying the matter, and assessments of defensive tactics available to the prospective client. By his own testimony, Barr spoke with Trump about Mueller’s character and approach. In addition, he conveyed his legal opinions about the merits of the Mueller probe in writing to Trump’s lawyers. And there is nothing in the public record about how Trump, a notoriously loquacious conversationalist, responded. Such discussions could demand disqualification and indicate that Barr’s relationship with his prospective client has distorted his view of the investigation and compromised his loyalty to his new potential clients: the Department of Justice and its Special Counsel’s Office.

If Trump or his associates shared any confidential information with Barr, including information as simple as their views on the strengths and weaknesses of the case, he is presumptively disqualified from representing the government in the Mueller investigation. His ethical obligations would leave only two options: recuse himself or obtain informed consent from the president and the government. Although Trump would eagerly consent to hand control of the investigation to his hand-selected surrogate, it is not clear who could consent in good faith on behalf of the government. One might argue that Trump is both the prospective client (in his personal capacity) and the new client (in his official capacity), but that would be ethically absurd. One might argue that Barr can give consent for the government once he is attorney general, but that, too, would be absurd. Recusal is the clearest and soundest choice.

Until Barr commits to recusal, the Senate must continue to probe the nature of Barr’s previous engagement with the president and his team, and should put the question to him directly: How have you obtained informed consent from the president and the government to switch sides in the Mueller investigation? That question has not yet been addressed. Informed consent requires, at minimum, Barr addressing these professional responsibility rules directly.