TELL CONGRESS:  CENSURE DIANNE FEINSTEIN!

The Federalist has also just published an article making the case for why the lawyers should face sanctions!

Take a look:Like most professions, lawyers have codes of professional responsibility under which they operate. In the case of Brett Kavanaugh, Christine Blasey Ford’s counsel may well have violated them.

It has been widely reported that the Senate Judiciary Committee offered to send investigators to California to speak with Ford. Ford did not accept this offer. In addition, Ford reportedly was unable to attend a hearing set for Sept. 24 because she is afraid of flying and could not otherwise get to Washington by that date. The committee agreed to delay its hearing to Sept. 27.

Yet in her testimony, Ford stated it was not clear to her that the Senate Judiciary Committee (SJC) had offered to take her statements and testimony in California to prevent her from having to fly. Ford testified she would have accepted the offer had she known about it.

Indeed, she testified to Chairman Chuck Grassley, “If you were gonna come out to see me I would have happily hosted you and would have been happy to speak to you out there. It wasn’t clear to me that that was the case.” Ford also testified, “I was hoping that they would come to me [in California] but I realized that was an unrealistic request.” Not only was it not unrealistic, the offer was on the table.

Here I’ll assume Ford testified truthfully that she was not clear about the Judiciary Committee’s offer. (The alternative raises its own issues.) If Ford’s attorneys did not inform her clearly of the SJC’s offer, the Judiciary Committee could file a grievance against Ford’s attorneys, Debra Katz and Michael Bromwich, with the DC Bar. It would be even worse if they withheld this information from Ford because they were interested in a delay of the hearing for reasons other than their client’s interests.

Lawyers have obligations to their clients and to the tribunals before which they practice. In this case, the client is Ford, and the tribunal is the SJC.

DC Bar Rule 1.4(b), “Communication,” provides that “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Did Ford’s lawyers withhold from her the SJC’s offer to take her statement in California? Or did they fail to make clear to Ford what the SJC had offered?

It beggars belief to think the offer could not be conveyed clearly. “The committee will take your testimony in California and you will not have to fly anywhere” seems straightforward enough. Grassley informed Minority Ranking Member Sen. Dianne Feinstein that “I have offered [Dr. Ford] the opportunity to testify in any of four possible venues: (1) a public hearing; (2) a private hearing; (3) a public staff interview; or (4) a private staff interview. I am even willing to have my staff travel to Dr. Ford in California — or anywhere else — to obtain her testimony.” It’s hard to see how that could be stated more clearly.

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Bottom line, did Ford’s lawyers deprive Ford of the opportunity to make an informed decision about whether to accept that offer? Ford’s testimony that she was not clear about the SJC’s offer, and that she would have accepted it had she known about and understood it, certainly suggests so. If this is the case, counsel arguably violated Rule 1.4(b).

Counsel also owes a duty of candor to the tribunal, in this case the committee. Under DC Bar Rule 3.3, attorneys cannot make a false statement of fact or law to the tribunal. If Ford’s fear of flying would not have prevented her from testifying on Sept. 24 in California, then any representation they made to the committee that such fear of flying was the basis for a delay was a false statement. This seems particularly egregious if, as Ford’s testimony suggests, she did not realize the committee had offered to take her testimony in California and avoid Ford having to fly anywhere.

DC Bar Rule 4.4 provides that “In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or knowingly use methods of obtaining evidence that violate the legal rights of such a person.” If Ford would have accepted the committee’s offer to testify in California, the committee could have completed that process well before the hearing on Sept. 27.

Ford’s counsel stated on Sept. 17, the day after the Washington Post published an aticle identifying Ford as Kavanaugh’s accuser, that Ford was ready to tell her story and, indeed, wanted an opportunity to tell her story. The committee, in all likelihood, could have had investigators in California by Sept. 19 prepared to speak with Ford, gather information, and pursue any leads. The SJC could then have held the public hearing in California on Sept. 24, as offered. Yet Ford was apparently unaware of or unclear about this option, and the hearing was put off until Sept. 27.

Given Ford’s testified-to willingness to speak to the SJC investigators in California, there seems no reasonable basis for the delay of the hearing to Sept. 27. Make no mistake, this delay unquestionably delayed and burdened numerous third persons. It obviously burdened Kavanaugh, who was subjected to further efforts from Senate Democrats to tarnish his name. We know Senate Democrats used this time for precisely this purpose. Debra Ramirez, the second accuser whose allegations were published in The New Yorker, stated she was contacted by Senate Democrats, not the other way around.

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