An impeachment inquiry of a federal judge has been set back by three months because of a conflict of interest between Holland & Knight's lobbying practice and a partner at the firm who is serving as counsel to the House Judiciary Committee.
Alan Baron, an expert on judicial impeachment, signed up with the committee in October to lead its investigation of U.S. District Judge G. Thomas Porteous Jr. of the Eastern District of Louisiana. Porteous, who is facing accusations of perjury and bribery and would be the first federal judge in two decades to be impeached, has said he's broken no laws.
The inquiry initially had Holland & Knight's blessing, but in January, when Baron's contract came up for renewal, the firm's management decided that Baron's work would interfere severely with the firm's lobbying. A House ethics rule restricts the lobbying activities of a law firm if anyone at the firm is working for the House. The rule, in effect since 2000, would have kept Holland & Knight lobbyists from talking to any of the Judiciary Committee's 39 members or their staff on any subject.
The firm gave Baron a choice: leave the investigation or leave the firm. Baron decided to leave Holland & Knight, and the inquiry stalled until he moved to Seyfarth Shaw as of counsel in March. The ethics rule cost Baron three staff lawyers who decided to stay with their firms.
Lawyers involved in the case say it's possible that the delay could have been avoided if Holland & Knight had a clearer understanding in October of the implications of the House ethics rule. Beyond the impeachment case, D.C. lawyers familiar with the rule say it means the House might have fewer people to choose from when it looks for outside counsel to handle other investigations.
Philip Evans, who leads Holland & Knight's Mid-Atlantic litigation group, says the firm was thrilled about Baron working for the House because of the notoriety it could gain from possible impeachment proceedings. But he says the firm's management didn't initially understand the impact of the House ethics rule. "There were discussions between the staff of the committee and Alan and others about how the rule was interpreted," he says. "Maybe, from the benefit of hindsight, someone should have looked again at the interpretation."
Ted Kalo, the general counsel to the House Judiciary Committee, declined to comment.
The FBI began looking into Porteous while investigating corruption among Louisiana bail bondsmen. Louis and Lori Marcotte, the owners of a bail bonding company, pleaded guilty to racketeering and fraud in March 2004 for a scheme in which they traded meals and other gifts for preferential treatment from judges and sheriff's deputies. They later told the FBI that they bought meals for Porteous and his friends, paid for car repairs for him and his family, and paid for a fence to be built for him. They said the gifts started when Porteous was a state judge and continued after President Bill Clinton appointed him to the federal bench in 1994.
The FBI gathered evidence that Porteous accepted other gifts, including trips to Las Vegas and to hunting retreats. Investigators said in materials filed in the case that the judge also hid assets when he filed for personal bankruptcy, and that he purposefully misspelled his own name as "G.T. Ortous" in his bankruptcy filing in an attempt to avoid public embarrassment.
But the Justice Department declined to bring charges. John Keeney, a deputy assistant attorney general in the Justice Department's Criminal Division, outlined the department's case against Porteous in a May 2007 letter to Chief Judge Edith Jones of the U.S. Court of Appeals for the 5th Circuit. The statute of limitations had run out on some of the allegations, Keeney wrote. In declining to prosecute the other allegations, he cited several reasons, including the "heavy burden" of persuading a jury in a criminal case, the difficulty of proving criminal intent and "the availability of alternative remedies," including impeachment.
In November 2007, a three-judge committee led by Jones found support for the allegations. In June 2008, the Judicial Council of the 5th Circuit publicly reprimanded Porteous and ordered that he not hear any more cases, and the Judicial Conference of the United States, led by Chief Justice John Roberts Jr., referred the case to the House for possible impeachment proceedings. Porteous is still getting paid.
To handle the rare situation, House Judiciary Committee Chairman John Conyers (D-Mich.) turned to Baron. The two had worked together in the late 1980s, when Baron worked as special counsel to the House on the impeachments of then-Judges Alcee Hastings and Walter Nixon. (The Senate removed both from the bench. Hastings was elected to the House in 1992.) The committee's investigation of Porteous might lead to the first judicial impeachment since 1989.
Before Baron could take the job, though, he needed to resolve any potential conflicts with Holland & Knight's other clients. Given that the new client would be the House, he sought out the firm's lobbying practice. In 2008, the firm ranked 7th in gross lobbying revenue with $45 million, according to the Influence 50, and in the fourth quarter, even as Congress was largely out of session, it was set to take in $3.6 million in reportable fees for federal lobbying.
Richard Gold, who leads Holland & Knight's lobbying practice, says he knew the Porteous case would restrict the firm's activity. But he says he also knew that the impact would be minimal until January because it was an election year and lawmakers were out of town. Gold says he made clear to Baron that the firm's lobbying practice could not be constrained for very long into 2009, and he says that Baron assured him that the work would be done in four to six months -- either because Porteous would quit fighting or the House would impeach him.
"We said, 'For six months, we can live with this,'" Gold says.
The ethics rule, Clause 18(b) of the Code of Official Conduct, applies to all "consultants" that the House hires. It prohibits those consultants and anyone else from the same "firm, partnership, or other business organization" from lobbying House members who serve on the committee that the consultant is working for. The prohibition extends to lobbying the House members' staff, and it applies to all subjects -- not only, for example, those subjects in the jurisdiction of the Judiciary Committee. The House Ethics Committee issued the prohibition in 2000. It was officially added to the House rules in 2007.
Evans says he initially had a different understanding of the restrictions -- that they would affect only Baron and other lawyers who were representing the House Judiciary Committee. "We thought we had it satisfactorily addressed, that the only lawyers who would be banned from any kind of lobbying work would be the lawyers who were working on the impeachment," he says.
Baron declined to discuss the internal discussions at Holland & Knight, referring questions on that subject to the firm.
PAUSE AND REWIND
With the firm's approval in the fall, Baron began organizing a staff, including Holland & Knight partner Jennifer Short and senior counsel John Irving IV, and McDermott Will & Emery partner Pamela Marple. They started their own investigation of Porteous, trying to build on the earlier work of the FBI and the 5th Circuit. Baron declined to say how much progress they made by the end of the year, but they had to stop in January because the authorization for the impeachment inquiry -- and Baron's contract -- expired with the end of the 110th Congress.
The House renewed the inquiry Jan. 13 with little fanfare, but doing the same with Baron's contract proved more difficult. It was then, Evans says, the firm's management learned from Baron the full extent of the lobbying restrictions and found them unacceptable. The firm decided to drop the Judiciary Committee as a client.
"I had to make a choice," Baron says. "Either I was going to give up the impeachment, or leave the firm." The other lawyers Baron had previously assembled decided not to switch law firms and left the investigation.
In late January or early February, Baron says he started talking with Seyfarth Shaw, which does not have a lobbying practice, and finalized his move two weeks later. He joined the firm in early March -- his sixth firm since 1990 -- and his new contract with the House became effective March 20, after approval from the House Committee on Administration. The contract authorizes payments to Seyfarth Shaw of up to $28,000 a month, plus expenses. Another Seyfarth Shaw lawyer, associate Kirsten Konar, has started work on the case.
Porteous, showing no sign of backing down, has hired a new lawyer, Richard Westling of Ober Kaler's D.C. office. Westling is a former trial attorney in the Justice Department's Tax Division and a former assistant U.S. attorney in the Eastern District of Louisiana. He declined to comment on the delay in the House investigation.
The next step in the process is for Baron and his team to finish gathering evidence against Porteous. He declined to say how long that might take. He would present the results to a 12-member task force, made up of Judiciary Committee members, and the task force would make a recommendation to the full committee on whether to pursue impeachment.
The possibility of a full-scale impeachment hearing comes at a politically difficult time for the Democrats. The Senate is beginning to consider the first judicial nominees of President Barack Obama, and any public focus on Porteous would highlight embarrassing accusations against the Democratic appointee. A Republican spokeswoman says GOP members are confident the investigation is moving forward in a bipartisan way.
It's common for Congress to hire outside counsel, especially for high-profile investigations. When the House Judiciary Committee began investigating the firings of nine U.S. attorneys in 2007, it hired Irvin Nathan, then a partner at Arnold & Porter, and Michael Zeldin, a principal at Deloitte & Touche. Besides his impeachment work, Baron served as the Democrats' chief counsel on the Senate Governmental Affairs Committee's investigation of 1996 campaign fundraising.
As a routine matter, lawyers in those situations take steps, sometimes including a leave of absence, to avoid conflicts of interest. But Gold says the rule "will severely hinder" the House's ability to hire experienced lawyers. "The type of people who do this work tend to be in firms that have an advocacy practice," he says. "You've taken them out of the mix from being able to do this work. Is that really what you want?"
Joel Jankowsky, head of the lobbying practice at Akin Gump Strauss Hauer & Feld, agrees that the rule would be an important factor for some firms to consider if the House were to approach them. "If you were at a firm that did a little bit of lobbying, you could probably work around it,"
Jankowsky says. "For a firm like us or another firm that does a lot of lobbying, it would have to be considered quite carefully."