Risk Update

Law Firm “Investigation” Conflicts — Another Firm Facing Concerns About Independence and Client Interest

Law firm’s investigation of HRC head seen as conflict of interest” —

  • “After a damning report on sexual misconduct allegations that forced Andrew Cuomo to resign as governor of New York and that ensnared the Human Rights Campaign president for having a potential role in the cover-up, the nation’s leading LGBTQ group has arranged for a law firm to conduct an independent review of its president’s role in the scandal — but legal experts see a conflict of interest looming over the process.”
  • “The scandal with the Human Rights Campaign president began when New York Attorney General Letitia James issued her report finding Cuomo violated the law by sexually harassing as many as 11 women on the job. David, who before taking over as Human Rights Campaign president was counselor to the governor of New York, was named nearly a dozen times in the report.”
  • “David has continued to deny wrongdoing. However, the findings indicate after his tenure as counselor to Cuomo, he kept the personnel file of an employee accusing the governor of sexual misconduct, then assisted in returning that file to Cuomo staffers seeking to leak it to the media in an attempt to discredit her. (A representative has disputed the characterization of material David kept as a personnel file, saying it was memorandum on an internal employment matter David kept because he, in part, worked on it.)”
  • “Sidley Austin LLP, the law firm chosen to conduct the review, has a self-described ‘long standing pro-bono relationship’ with the Human Rights Campaign and was chief among its legal partners announced in October 2019 for a new direction to litigation in LGBTQ advocacy, which was an engagement Alphonso David undertook when he took the helm as HRC’s president.”
  • “As a result of the 2019 announcement, which was brokered soon after David took the helm of the Human Rights Campaign, some legal experts see a conflict of interest that undermines the perception of impartiality in Sidley’s ongoing review and could color any finding of no wrongdoing, which would arguably be in the interests of all parties involved in the review.”
  • “Brenner Fissell, a law professor who teaches legal ethics at Hofstra University in Long Island, N.Y., told the Blade the independent review Sidley is undertaking ‘appears less than credible… Sidley in the press release calls HRC a long-standing pro bono client, and they’re also doing PR for them. I mean, they’re really inextricably connected, right?'”
  • “Fissell said no ethical rules are in place for conducting independent investigations per se, especially because Sidley has never represented David before as a client. As a result, Fissell said there is likely no technical violation of ethics rules over conflict of interest in this scenario.”
  • “‘If you had previously engaged such counsel, that makes it less independent,’ Fissell said. ‘So the answer to your question is, this is not good if you want to do a truly independent investigation.'”
  • “Sidley didn’t respond to repeated email requests from the Blade for answers to a series of written questions on the independent investigation and its pre-existing relationship with the Human Rights Campaign, including whether or not Phillips, the attorney quoted in the news statement would participate in the ongoing review.”
  • “A Human Rights Campaign representative, however, responded to similar inquiries… The representative in the bullet points said the Human Rights Campaign chose Sidley ‘because of its vast experience in internal investigations and reviews” and is “grateful that Sidley has always represented us on a pro bono basis, including in this matter.'”
  • “The Human Rights Campaign representative said Sidley is one of many firms that has worked for the LGBTQ organization, but has “never represented Alphonso David on any matter.” In conducting the investigation, the representative said Sidley reports to an independent Board of Directors for the Human Rights Campaign.”
  • “‘When any outside entity is retained to conduct an independent review, it has to be truly independent,’ [Michael Frisch, an ethics counsel and adjunct professor at Georgetown Law School] said. ‘To me, if you’re going to conduct an independent inquiry. Your bonafides to give independent advice in a report is always subject of concern, and one should be above reproach in those situations.'”
  • “‘You analyze any conflict of interest from the point of view of is there a substantial risk that the lawyers’ advice will be colored by some interest, other than the client who’s getting the advice,’ Frisch said. ‘The magic language in the rule is substantial risk of material limitation, that’s essentially the test. Every client is entitled to independent advice.'”