Risk Update

Election Conflicts — Firm Policies, Client Selection/Scope, PR and Press

Posted Dan Bressler

Law firm PR risk has always been an interest of mine. We’ve seen a few examples of controversy surface in the legal and mainstream press throughout 2020. This example raises interesting questions in my mind about client selection, scope of engagement, and whether internal policies and practices around client intake and matter scope can be agile enough to give firms enough window to review such issues when things are moving quickly.

With that, see the following a kind reader brought to my attention: “Cleta Mitchell, who advised Trump on Saturday phone call, resigns from law firm” —

  • “Republican lawyer Cleta Mitchell, who advised President Trump during his Saturday phone call with Georgia’s secretary of state in an effort to overturn the election, resigned on Tuesday as a partner in the Washington office of the law firm Foley & Lardner.”
  • “The Washington Post on Sunday published audio and a transcript of the hour-long call in which Trump pressured Georgia Secretary of State Brad Raffensperger to overturn the election results. During the call, Mitchell complained that she had not been given access to certain information from Raffensperger’s office, and Trump relied on her to an extraordinary degree during the call.”
  • “The Post on Monday published a story detailing Mitchell’s transition from being a liberal Democrat to a conservative Republican, culminating in her role advising Trump during the call.”
  • “In the Saturday call, Trump told Raffensperger that he risked facing criminal consequences if he didn’t ‘find’ enough votes to declare that the president had won the state. Raffensperger responded that “the challenge that you have is the data you have is wrong.’ Trump then asked Mitchell, ‘Well, Cleta, how do you respond to that? Maybe you tell me?’ Mitchell complained to Raffensperger that ‘we have asked from your office for records that only you have’ but had not received them.”
  • “Trump said, ‘All we have to do, Cleta, is find 11,000-plus votes.'”

The full text of the statement by the firm firm on January 4:

  • “Foley & Lardner LLP is not representing any parties seeking to contest the results of the presidential election. In November, the firm made a policy decision not to take on any representation of any party in connection with matters related to the presidential election results. Our policy did allow our attorneys to participate in observing election recounts and similar actions on a voluntary basis in their individual capacity as private citizens so long as they did not act as legal advisers. We are aware of, and are concerned by, Ms. Mitchell’s participation in the January 2 conference call and are working to understand her involvement more thoroughly.”

For her part, Mitchell made the following statement:

  • “As you are probably aware, there has been a massive pressure campaign in the last several days mounted by leftist groups via social media and other means against me, my law firm, and clients of the law firm, because of my personal involvement with President Trump, his campaign and the White House, related to the November 3 general election in Georgia. After discussions with my firm’s management, I have decided that it is in both of our interests that I leave the firm.”

See also: “Cleta Mitchell Out At Foley & Lardner After Troubling Donald Trump Call” —

  • “After participating in a phone call where Donald Trump was captured on tape pressuring Georgia election officials to commit what election law experts identified as well within the statutory definition of election fraud, Cleta Mitchell is gone as a Foley & Lardner partner.”
  • “Mitchell’s appearance on the call clearly shocked Foley & Lardner, who were quick to announce that the firm itself was not retained to represent Donald Trump, despite Mitchell’s rhetoric on the call where she spoke of reviewing evidence in the case and explaining allegations that ‘we’ made in Trump’s filings challenging election results.”
  • “Given that attorneys in law firms cannot easily practice side gigs without inviting myriad ethical and insurance coverage issues, Foley & Lardner had reason to be deeply troubled.”

In a separate article: “Stephen Gillers, an ethics expert at New York University Law School, said the issue facing Mitchell is probably one relating to the law firm’s policy, adding, ‘I’m sure the firm is dismayed by the appearance of its lawyer on the transcript.'”