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WASHINGTON — When Sen. John Kerry of Massachusetts set out to hire a lawyer for his 2004 presidential campaign, he turned to Democratic election maven Robert Bauer. So did Sen. Joseph Lieberman of Connecticut, one of Kerry’s top rivals. In fact, Rep. Richard Gephardt of Missouri, yet another leading contender for the Democratic nomination, chose Bauer’s law firm as well. And Bauer, a partner in the D.C. office of Perkins Coie, turns out not to be the only Washington lawyer who represents three Democratic presidential aspirants as the 2004 race begins to heat up. Another election-law specialist, Lyn Utrecht of Ryan, Phillips, Utrecht & MacKinnon, is working simultaneously for former Gov. Howard Dean of Vermont, Sen. Bob Graham of Florida, and former Sen. Carol Moseley Braun of Illinois. It’s not unheard of for a single firm to do campaign-related legal work for more than one candidate for the same office, but it is unusual for six candidates to have tapped just two law firms. Chalk it up to the fact that relatively few lawyers, even in Washington, specialize in the arcane area of election law — and that many of those in the field will work only for candidates of one political party. That doesn’t leave a lot of possibilities for someone wishing to hire a lawyer who knows both how to draw up a lease for office space and how to negotiate the minefield of Federal Election Commission regulations. FULL DISCLOSURE Legal-ethics experts say there is nothing wrong with the existence of these arrangements, as long as all the candidates are fully informed in advance and agree to them. Bauer says he received the full blessings of his clients. Utrecht and other lawyers in her firm were unavailable for comment, but it is understood that her clients were fully informed as well. However, election lawyers and ethics specialists caution that as the campaign gathers steam, any number of pitfalls can await lawyers who represent more than one candidate. First, as Bauer acknowledges, “we can’t and won’t act against the interests of another client of the firm. Perkins Coie is not going to be on two sides of the same issue.” That means, to begin with, that if Kerry, for example, were to sue Lieberman on a campaign-related matter, both candidates would have to find lawyers outside Perkins Coie. “We’ve had no difficulties of this sort so far,” Bauer says. Bauer explains that most of the work done by a campaign counsel doesn’t involve any potential conflicts of interest. “We do the whole range of things that a small business needs — leases, contracts, office space — as well as adhering to the reporting requirements under the FEC,” Bauer says. “We deal with anything with potential legal implications. But we typically deal with legal issues, not politics.” Bauer, who says he will not represent Republicans, has a long history of working for Democratic politicians. He represented Bill Bradley in his losing 2000 race for the presidential nomination, as well as Gephardt in his 1988 presidential bid. Bauer says Perkins Coie has named three team leaders — one for each candidate. Partner Mark Elias heads the Kerry team, partner Judith Corley leads the Gephardt effort, and of counsel Cassie Lentchner coordinates the Lieberman work. As chairman of the firm’s political law group, Bauer says, he “provides the overall leadership” and works on legal assignments for all three candidates as needed. Perkins Coie charges all three candidates the same hourly rate, which Bauer declines to reveal. According to FEC data, in the second quarter of this year the firm received $15,278 from the Lieberman campaign, $15,145 from the Kerry campaign, and $10,077 from the Gephardt campaign. Often, campaigns defer paying their legal fees for months, so the amount paid does not necessarily reflect the amount of work that has been done by the lawyers. Sometimes, law firms do not insist on any immediate payment. According to FEC records, the Dean campaign owed Utrecht’s firm $40,917 as of June 30. The Moseley Braun campaign owed the firm $32,216. The Graham campaign, in contrast, paid $43,328 to the law firm in the second quarter. No one on the staff of the campaigns has expressed any concerns about the simultaneous representations. “We have full faith and confidence in our lawyers, and we are confident that they will respect our attorney-client privilege,” says Jano Cabrera, press spokesman for the Lieberman campaign. Says Erik Smith, a Gephardt spokesman: “We have the best attorneys in the business representing us. Besides, there are different attorneys [in the firm] who represent the different campaigns.” A seventh announced Democratic candidate, Sen. John Edwards of North Carolina, is relying on another well-known D.C.-based election specialist — William Oldaker of Oldaker, Biden & Belair. Oldaker did not return calls. KEEPING TABS Ethics expert Stephen Gillers of the New York University School of Law says that it’s not a problem in itself for a law firm to represent simultaneously two or more political opponents in a campaign. But he adds that the firm must closely monitor the situation to make sure that an unexpected conflict doesn’t arise and to deal with it if it does. “It is essential that no confidential information about any one candidate is used or revealed to the disadvantage of that candidate or of a competing candidate,” Gillers says. Gillers notes that if a firm’s advice touches on political strategy rather than staying close to the legal nuts and bolts, serious dilemmas can come up. “Let’s say Lieberman wants to do something in Iowa in a particular month, and Kerry also wants to do something in Iowa then. If the same firm represents both candidates, and Kerry would benefit from knowledge of Lieberman’s plan, the firm is in a tight box,” says Gillers. The reason is that the firm’s duty to zealously represent its client, Kerry, would require it to tell Kerry what it knows — yet its duty of confidentiality to its other client, Lieberman, would bar it from making that disclosure. The only solution, Gillers says, is for the firm to point out to Kerry that it represents multiple candidates and to decline to advise Kerry on the matter without saying why it is declining. A D.C. lawyer experienced in election law spins out a couple of different scenarios. “I have the highest regard for these lawyers [who have more than one client in the race], and in advising on FEC regulations, there’s absolutely no conflict,” this lawyer says. “But typically, one candidate will accuse another of violating the FEC regulations, and obviously, that law firm can’t get involved in that because they would in effect be accusing themselves.” This lawyer also says that delegate selection in a primary election is often rancorous. Even if a dispute over a delegate’s credentials doesn’t end up in court, if the clients of a single law firm become actually or potentially “adversarial” to one another, “the candidates would have to seek another lawyer.” Kenneth Gross, a well-known election-law specialist at the D.C. office of Skadden, Arps, Slate, Meagher & Flom who is not representing a Democratic hopeful, says some of the concern over dual representation is overblown. “A lot of the heavy lifting comes in after the campaign,” when one candidate has already won and there’s no possible conflict, Gross says. “Win or lose, the FEC auditors will go about their business,” says Gross. “They don’t care if you won or lost. The campaign is now just a footnote, and you’re stuck with it, and whatever grows out of it.” Jonathan Groner is editor at large for The Recorder’s Washington, D.C., affiliate Legal Times.

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