Wednesday, September 11, 2013
A so-far publicly unidentified attorney in the lobbying group at Dickstein Shapiro reportedly sent emails to members of the House Committee on Government Reform asking them not to question Jonathan Silver, a government employee and prospective witness and Dickstein client. Specifically, the attorney requested, "If possible, please do not direct questions to Jonathan Silver. He's a client of my firm," adding a smiley face emoticon symbol. See here, here and here. The emails were sharply criticized by committee chair Darrell Issa (R-Calif.), who, displaying a copy but charitably blacking out the sender's name, demanded an explanation from Silver's counsel why "we shouldn't refer this to the American Bar Association." (The ABA, of course, does not hear ethics complaints against individual lawyers.) The committee's ranking Democrat, Elijah Cummings, joined in expressing his dismay, saying the requests seemed "clearly out of bounds."
Although the attorney (I suspect someone known to the Congresspersons, perhaps a former House staffer) appears to have demonstrated extraordinarily bad judgment, I question whether her conduct was unethical. Lobbyists are allowed to privately ask Representatives to vote on matters of crucial importance, far more important often than whether a government employee will be asked questions by a committee. I do not find an ex parte attempt to influence questioning at a hearing worse than a similar attempt to influence a vote. Such conduct would ordinarily be unethical, however, if directed toward a judge or prosecutor or if it violated a rule governing House committee conduct.
When I last appeared with a client before a House committee hearing, the chair threatened him with contempt for having, quite appropriately, asserted his Fifth Amendment right to refuse to answer questions. That threat, more shockingly to me, was repeated in private by Congressional staff lawyers, including the then chief counsel for the House of Representatives. I, therefore, am somewhat amused by the self-righteousness of the Congressmen here.