Kellyanne-Conway

If past is prologue, the ethics complaint filed by 15 law professors against White House adviser Kellyanne Conway could go nowhere—and take a long time getting there.

The D.C. Bar Office of Disciplinary Counsel is known to take its time on ethics investigations. Michael Frisch, a former lawyer in the office, described the pace as “incredibly slow.”

In their complaint, the law professors, who teach courses related to legal ethics, accuse Conway of misconduct under local attorney rules for making public statements that, they contend, amount to misrepresentations. Conway, for instance, recently made a reference to a nonexistent “Bowling Green Massacre” to justify President Donald Trump’s executive order banning immigrants from seven Muslim countries. Conway, in January, said the White House had presented “alternative facts to dispute the contention that the crowd at Trump’s inauguration was not larger than Barack Obama’s at his two inaugural ceremonies.

The professors, from law schools that include Georgetown, Yale, Fordham, Duke and Drexel, also contend Conway misused her White House position to endorse Ivanka Trump products on Feb. 9 in an interview on Fox News. Conway conducted that interview from the White House briefing room with the White House insignia visible behind her.

 

Federal rules on conflicts of interest, the professors said, prohibit using public office “for the endorsement of any product, service or enterprise, or for the private gain of friends, relatives or persons with whom the employee is affiliated in a nongovernmental capacity.”

Frisch, ethics counsel at Georgetown University Law Center, said the complaint rooted in Conway’s promotion of Ivanka Trump’s brand should be investigated. (The White House said, after the incident, Conway was “counseled” for her remarks.) Frisch, who is not involved in the complaint against Conway, said the other aspects of the professors’ complaint “flirt with the First Amendment.” The Washington Post first reported on the Conway complaint Thursday.

Jonathan Turley of George Washington University School of Law and other ethics practitioners, agreeing with Frisch’s assessment, said the brand-promotion charge holds the greatest merit.

Turley, writing on his blog Friday, said of Conway’s Ivanka Trump endorsement: “That is a technical violation of federal rules, but the question is whether it was a venial rather than mortal sin.” Turley dismissed the other allegations against Conway as “overtly political.”

In Washington, where many lawyers are public officials, Frisch said, “we used to get politically-charged cases all the time.”

Frisch recalled the congressional investigation of the U.S. Justice Department’s “Fast and Furious” program. Complaints were filed against then-Attorney General Eric Holder Jr. and “went nowhere,” he said.

The average “original” case, which is what Conway’s case likely would be considered, is now taking seven to nine years to resolve, said Mark Foster of Zuckerman Spaeder, a legal ethics specialist. And it may be three months or longer before the disciplinary office even decides whether to act on the complaint, said Paul Knight of Nossaman LLP, who has represented clients facing attorney-discipline action.

“Sometimes when [complaints] come in for intake, frequently the bar counsel will send out a letter and a copy of the complaint to the lawyer being accused and say, ‘Give us your comments in 45 days.’ This one is going to be a long while,” Knight said.

A representative from the bar counsel’s office was not immediately reached for comment Friday afternoon.

The disciplinary system is “extremely wary of being used as a club,” Foster said. “It’s very common that lawyers think they can get an advantage over opponents by using complaints. All kinds of safeguards are built into the system.”

Conway’s law license has been suspended for nonpayment of dues, D.C. bar records show. That does not affect the disciplinary office’s jurisdiction over her, Knight said.

“If you’re a member of the bar, even a member suspended for nonpayment of dues, they still have jurisdiction,” he said. “It may make it a lower priority. So there is a priority to some degree.”

If the Conway complaint becomes a bar counsel “original” case, Frisch said the law professors will have no right to information during an investigation.

“It’s a good way to tank it and never be accountable for it,” Frisch said. “I think bar secrecy is potentially in conflict with the First Amendment and the public has a right to know how this is handled.”