Saturday, April 17, 2010

Clarification on Kennedy Firm Status, Ryan Vaughn, and Attorney Silence


I reported last week that Melina Kennedy is a partner at the Indianapolis law firm of Baker & Daniels. In addition, when a commenter stated (preposterously, in my opinion) that Kennedy was mum because she was looking forward to her cut from the legal fees generated by the Citizens Gas deal, I rebutted by stating that she'd be lucky to make $1,800 given the total number of B&D partners.

Here's the problem. She's not a partner. Her relationship with Baker & Daniels is "of counsel," which means she doesn't get a cut. People can pick whatever reasons they want to vote for or against a candidate, but they should be factual, and if I get it wrong, I make amends. My apologies to Ms. Kennedy.

Many have asked about what makes an attorney unable to speak against a government action like the Cit Gas deal, and there are many prohibitions at play in the Rules of Professional Conduct for Indiana attorneys.

Rule 1.6 makes confidential information disclosed in the attorney-client relationship. Rule 1.8(b) states that a lawyer "shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent." Rule 1.9 makes the prohibition in 1.8 apply to former clients as well, and these prohibitions are imputed to all personnel in a firm.

What does this mean?

Attorneys such as Republican City-County Council President and Barnes & Thornburg attorney Ryan Vaughn (go Wabash!) may find themselves unable to engage the bully pulpit to speak out against a deal that would be bad for their constituents, even in cases where the firm had created a "Chinese wall" to keep information out of that particular attorney's hands. On the flip side, if some unknown positives for the Councillor's constituents were in the details, he couldn't go out publicly to sell it in a way he might without the ethical prohibitions in place).

(I asked Vaughn via Facebook if B&T has any connection with the City's water deal as counsel or if it anticipates becoming involved on the bond work, financing, etc., and if so, whether he would recuse himself from voting on the deal. He has not responded yet, but as soon as he does, I will let everyone know his reply).

Not to give fuel to people who are harsh about lawyers, but because we have a stronger obligation to our clients than most professions, we have a higher burden to bear. We can only hope that our elected official reach the right balance and recuse themselves when a conflict exists between their professional duties and their electoral ones.


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2 comments:

Indy Student said...

From my understanding, "Of Counsel" can mean a variety of things. It can mean a retired manager who keeps a desk there and never takes a case, an attorney employed there but isn't an associate, or it could be a fancy word for consultant.

Do you know what Kennedy falls under?

Anonymous said...

Kennedy is an attorney at BD with a title of Of Counsel. She has clients and works on their behalf every day.