The Ethical Role and Responsibilities of a Lawyer-Ethicist: The Case of the Independent Counsel's Independent Counsel

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On November 20, 1998, Sam Dash abruptly resigned his position as ethics adviser to Ken Starr and the Office of Independent Counsel. Starr had just concluded his testimony before the House Judiciary Committee, which was considering the impeachment of President Clinton based on allegations that were the subject of a report submitted to the Committee by Starr. Dash not only made the fact of his resignation public, but also released a copy of his letter to Starr. In that letter, he explained that he was resigning because Starr had violated his obligations under the independent counsel statute and unlawfully intruded on the exclusive power of the House to impeach.

Dash's publication of his views on the propriety of Starr's testimony was defended by some and excoriated by others. Among the attacks, some critics challenged Dash, the "ethics expert," for breaching his own ethical duties toward Starr, including duties of confidentiality and loyalty. Dash did not immediately attempt to rebut this criticism, but one year later, when he finally spoke out publicly, he defended himself by claiming that he was not an "ethics lawyer" for Starr, but rather an "independent consultant." He also sought to justify the publication of his resignation as a form of "noisy withdrawal," explaining that Starr stated on specific occasions that he has consulted Dash and that Dash agreed with him, thus giving Dash the right to rebut a presumption that Starr created by making Dash's role public. Under this line of defense, Dash's role as an "independent consultant" was akin to that of an ethics "expert," i.e., a lawyer retained to provide an independent, objective opinion, rather than zealous advocacy of a client's position.

Both lawyers and law professors are increasingly being asked to render opinions and advice as ethics "experts" or "consultants." This recent and growing phenomenon has spawned considerable confusion regarding what has been called "the ethics of ethics consultation" - i.e., ethical issues that need to be recognized and addressed not only by "consulted" lawyers (like Dash), but also by "consulting lawyers" (like Starr). These issues include: (1) whether and when an attorney-client relationship has been formed by an ethics expert; (2) what duties are owed by experts who do not form a traditional attorney-client relationship with anyone; and (3) to whom an expert's duties are owed, both inside and outside a traditional attorney-client relationship.

These questions are nicely raised by the episode involving Sam Dash and Ken Starr. The purpose of this Article is not to condemn or defend Sam Dash, but rather to use this highly publicized episode as a jumping-off point for a discussion of the issues involved in the consultation of lawyers who are experts in ethics and other subject areas.

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