Kellyann Conway law complaint

Kellyann Conway Brings “Shame on Legal Profession” Says Law Complaint

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A group of law ethics professors have taken a bar complaint about Donald Trump’s White House counsellor Kellyann Conway.

The complaint refers to specific instances of lying or deception, including:

  • The “Bowling Green massacre” that didn’t occur
  • False Claims that President Obama had banned Iraqi refugees after the non-existent “massacre”
  • “Alternative facts” regarding President Trump’s inauguration crowd
  • Misusing her position to endorse Ivanka Trump’s products

The Washington Post reported the issue with the letter (below) from the 15 law professors and relating to Ms Conway, who is a graduate of George Washington Law School and was admitted to the DC bar in 1995.

The Letter

As Rule 8.4(c) states, “It is professional misconduct for a lawyer to [e]ngage in conduct
involving dishonesty, fraud, deceit, or misrepresentation.” This is an admittedly broad rule, as it
includes conduct outside the practice of law and, unlike 8.4(b), the conduct need not be criminal.

We are mindful of the Rule’s breadth and aware that disciplinary proceedings under this Rule
could lead to mischief and worse. Generally speaking, we do not believe that lawyers should
face discipline under this Rule for public or private dishonesty or misrepresentations unless the lawyer’s conduct calls into serious question his or her “fitness for the practice of law,” DC Rule
8.4, Comment 1, or indicates that the lawyer “lacks the character required for bar membership.”
DC Bar, Ethics Opinion 323, Misrepresentation by an Attorney Employed by a Government
Agency as Part of Official Duties. 

However, we believe that lawyers in public office—Ms. Conway is Counselor to the President—
have a higher obligation to avoid conduct involving dishonest, fraud, deceit, or misrepresentation
than other lawyers. Although the DC Rules contain no Comment specifically relating to 8.4(c),
the American Bar Association’s Model Rules of Professional Conduct (MR) make this point.
MR 8.4(c), Comment 7 states that “Lawyers holding public office assume legal responsibilities
going beyond those of other citizens. 

A lawyer’s abuse of public office can suggest an inability
to fulfill the professional role of lawyers.” Cf. DC Rule 1.11 (on the special conflict of interest
rules for lawyers who have served in government).
It is not surprising that the Model Rules distinguish lawyers in public office from other lawyers.
The ABA knows well the history of professional responsibility as an academic requirement in
American law schools: following the Watergate scandal, which involved questionable conduct
by a number of high-ranking lawyers in the Nixon administration, the ABA mandated that law
students take such a course in order to graduate.
Some of the signers of this complaint practice in the District of Columbia and/or are members ofthe DC Bar. We feel compelled to file such a complaint under DC Rule 8.3(a), which states that
“A lawyer who knows that another lawyer has committed a violation of the Rules of Professional
Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness
as a lawyer in other respects, shall inform the appropriate professional authority.”
Those of us who do not practice in DC are members of other state and federal bars. We all
believe it is critically important that lawyers in public office—especially those who act as
spokespersons for the highest levels of government—be truthful.
The DC Bar has issued an Ethics Opinion on lawyers working in government in a nonrepresentational capacity that supports this complaint. See generally Ethics Opinion 323,
Misrepresentation by an Attorney Employed by a Government Agency as Part of Official Duties. 

In addressing an inquiry about attorneys employed by an intelligence or national security agency who engage in
clandestine activities, the Opinion distinguishes those government officials whose official duties
require them to “act deceitfully” from other lawyers in government. Though the Opinion findslawyers “whose duties require the making of misrepresentations as authorized by law as part of
their official duties” do not violate Rule 8.4(c), the drafters emphasize the Opinion’s narrow
scope: it applies “only to misrepresentations made in the course of official conduct when the
employee…reasonably believes that applicable law authorizes the misrepresentations.”
Significantly, for purposes of this complaint, Ethics Opinion 323 makes plain that its conclusion
in the above narrow context does not provide “blanket permission for an attorney employed by
government agencies to misrepresent themselves.” [Emphasis added] The drafters further
explain:
Nor does [the Opinion] authorize misrepresentation when a countervailing legal duty to
give truthful answers applies…. And, of course, this opinion does not authorize deceit
for non-official reasons, or where an attorney could not, objectively have a reasonable
belief that applicable law authorizes the actions in question.
Ms. Conway’s misconduct under DC Rule 8.4(c) is as follows:
On several occasions, including in an interview on MSNBC in early February, 2017, Ms.
Conway referred to the “Bowling Green Massacre” to justify President Donald Trump’s
executive order banning immigrants from seven overwhelmingly Muslim countries. Not
only was there no “massacre” in Bowling Green, Kentucky (or Bowling Green, New
York, for that matter), but Ms. Conway knew there was no massacre. 

Although Ms.Conway claimed it was a slip of the tongue and apologized, her actual words belie her
having misspoken: “I bet it’s brand-new information to people that President Obama had
a six-month ban on the Iraqi refugee program after two Iraqis came here to this country,
were radicalized, and were the masterminds behind the Bowling Green Massacre. Most
people don’t know that because it didn’t get covered.” 

See generally Clare Foran, The Bowling Green Massacre that Wasn’t, THE ATLANTIC, February 3, 2017, at
https://www.theatlantic.com/politics/archive/2017/02/kellyanne-conway-bowling-greenmassacre-alternative-facts/515619/. Moreover, she cited the nonexistent massacre to
media outlets on at least two other occasions. See Aaron Blake, The Fix: Kellyanne
Conway’s ‘Bowling Green Massacre’ wasn’t a slip of the tongue. 

She has said it before.
WASH. POST, February 6, 2017, See Here 
Compounding this false statement, in that same MSNBC interview Ms. Conway also
made a false statement that President Barack Obama had “banned” Iraqi refugees from
coming into the United States for six months following the “Bowling Green Massacre.”
Id. However, President Obama did not impose a formal six-month ban on Iraqi refugees.
He ordered enhanced screening procedures following what actually happened in Bowling
Green—the arrest and prosecution of two Iraqis for attempting to send weapons and
money to al-Qaeda in Iraq. 

The two men subsequently pled guilty to federal terrorism
charges and were sentenced to substantial prison terms. See Glenn Kessler, Fact
Checker: Trump’s facile claim that his refugee policy is similar to Obama’s in 2011,
WASH. POST, January 29, 2017, See Here.

This was not the first time Ms. Conway had engaged in conduct involving “dishonesty,
fraud, deceit, or misrepresentation.” On January 22, 2017, on the NBC television show
Meet the Press, Ms. Conway said that the White House had put forth “alternative facts”
to what the news media reported about the size of Mr. Trump’s inauguration crowd. She
made this assertion the day after Mr. Trump and White House press secretary Sean Spicer
accused the news media of reporting falsehoods about the inauguration and Mr. Trump’s
relationship with intelligence agencies. See Nicholas Fandos, White House Pushes
‘Alternative Facts.’ Here are the Real Ones. N.Y. TIMES, January 22, 2017, at
https://www.nytimes.com/2017/01/22/us/politics/president-trump-inauguration-crowdwhite-house.html. As many prominent commentators have pointed out, the phrase
“alternative facts” is especially dangerous when offered by the President’s counselor.
Moreover, “alternative facts’ are not facts at all; they are lies. Charles M. Blow, A Lie by
Any Other Name, N.Y. TIMES, January 26, 2017.
Ms. Conway has also misused her position to endorse Ivanka Trump products on
February 9, 2017 in an interview on Fox News from the White House briefing room with
the White House insignia visible behind her. While this conduct does not fall within DC
Rule 8.4, it is a clear violation of government ethics rules, about which a lawyer and
member of the Bar should surely know. Federal rules on conflicts of interest specifically
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.” The government’s chief ethics watchdog denounced
Conway’s conduct in a letter to the White House. Richard Perez Pena, Ethics Watchdog
Denounces Conway’s Endorsement of Ivanka Trump Products, N.Y. TIMES, February 14,
2017.

 See also DC Rule 1.11, Comment 2 (noting that, in addition to ethical
rules, lawyers are subject to statutes and regulations concerning conflict of interest and
suggesting that, given the many lawyers who work in the federal or local government in
the District of Columbia, “particular heed must be paid to the federal conflict-of interest
statutes.”)
We do not file this complaint lightly. In addition to being a member of the DC Bar, Ms. Conway
is a graduate of the George Washington University Law School, one of the District’s premier law
schools. We believe that, at one time, Ms. Conway, understood her ethical responsibilities as a
lawyer and abided by them. But she is currently acting in a way that brings shame upon the legal
profession. As the Preamble to the Model Rules states, a lawyer plays an important role as a
“public citizen” in addition to our other roles.
If Ms. Conway were not a lawyer and was “only” engaging in politics, there would be few limits
on her conduct outside of the political process itself. She could say and do what she wished and
still call herself a politician. But she is a lawyer. And her conduct, clearly intentionally violative
of the rules that regulate her professional status, cries out for sanctioning by the DC Bar.

Respectfully submitted,

John Bickers
Professor of Law
Northern Kentucky University

Susan Brooks
Professor of Law
Drexel University

Lawrence Fox
Visiting Lecturer in Law
Yale Law School

Bennett Gershman
Professor of Law
Pace University

Justin Hansford
Associate Professor of Law
Saint Louis University
Vida Johnson
Visiting Professor of Law
Georgetown University

Jennifer Kinsley
Associate Professor of Law
Northern Kentucky University

Catherine Klein
Professor of Law
Catholic University

William Montross
Visiting Professor of Law
University of the District of
Columbia

Russell Pearce
Professor of Law
Fordham University

Ilene Seidman
Professor of Law
Suffolk University
David Singleton
Associate Professor of Law
Northern Kentucky
University

Abbe Smith
Professor of Law
Georgetown University

Michael Tigar
Professor of Law Emeritus
American University
Duke University

Ellen Yaroshefsky
Professor of Law
Hofstra University

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