The Kavanaugh Hearing Leaves Lingering Questions Over Representations Made To The Committee By Counsel

September 20, 2018 by Jonathan Turley



Yesterday’s Kavanaugh hearing left many questions on both sides, including the ultimate question of the alleged attempted rape of Dr. Christine Blasey Ford.  However, for lawyers, one exchange sticks out from a professional standpoint.  Ford was questioned why she delayed the hearing due to her alleged fear of flying and, more importantly, why she did not simply meet with committee staff in California.  Ford admitted that, while she does not like to fly, she does in fact routinely fly around the world, including frequent trips to nearby Delaware.  The most striking statement however was the suggestion that she was never told by counsel that she did not have to fly to Washington and the Committee was ready to fly to her — a prospect that she said she would have welcomed.  That left a lingering question of whether her counsel did not tell her of a material offer or whether she misrepresented the reason for her delay in speaking to the Committee.

Senate Judiciary Committee Chair Chuck Grassley (R-Iowa) challenged Ford when she said

“I was hoping that they come to me. But, then, I realized that that was an unrealistic request. . . . So, that was certainly what I was hoping – was to avoid having to get on an airplane – but, I eventually was able to get up the gumption, with the help of some friends, and get on the plane.”

Chairman Grassley immediately raised the conflict with what the Committee had been told by her counsel on her behalf:

“Dr. Ford, I want to correct the record, but it’s not something that I’m saying that you stated wrongly, because you may not know the fact that, when you said that you did not think that it was possible for us to go to California as a committee, or investigators to go to California to talk to you – we did, in fact, offer that to you. And, we had the capability of doing it, and we would have done it, anywhere or any time.”

That offer was made on Sept. 21st and it was sent to Ford’s lawyers.

That offer was widely reported in the national media so it was curious why Ford was unaware of the offer, but it was in direct conflict with what the Committee understood from her counsel.  However, there was an objection from counsel when she asked whether it “was communicated to you by your counsel or someone else that the committee had asked to interview you, and that they offered to come out to California to do so?”

Ford responded

“Can I say something to you? Do you mind if I say something to you directly? I just appreciate that you did offer that. I wasn’t clear on what the offer was. If you were going to come out to see me, I would have happily hosted you and been happy to speak with you out there. I just did not — it was not clear to me that that was the case.”

It was not explained how an offer to fly to her in California was not “clear.”  Counsel was required to convey and explain such material offers to Ford in order to represent her position in good faith.  The D.C. bar rules state:

Rules of Professional Conduct: Rule 1.4–Communication

   (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
(c) A lawyer who receives an offer of settlement in a civil case or proffered plea bargain in a criminal case shall inform the client promptly of the substance of the communication.

That rule puts counsel in a difficult place. Michael Bromwich, Debra Katz and Lisa Banks indicated that they are working pro bono but blocked queries as to whether the offer of the Committee was clearly conveyed to their client.  That objection was made despite their effectively telling the Committee that their client would not accept the offer.  The situation is particularly precarious for counsel after Ford admitted that she was given the pro bono counsel at the suggestion and referral of Dianne Feinstein.  That can create concerns over the representational lines, though Katz is a respected litigator and has always fought vigorously for her clients in this area.

The most likely scenario is that Ford was told. Certainly a case can be made for her counsel that she watched coverage making the offer clear, even if she did not get clarity from counsel.  This conflict would ordinarily trigger probing questions over the basis of past representations. However, there was a clear decision not to press Ford on such conflicts due to the bad optics even when using a female prosecutor as a buffer between the witness and the all-male GOP senators.

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