2021 Convocation Agenda

Agenda -- October 14, 2021, 11:00am - 4:00pm ET

Watchdogs or Lapdogs? The Ethical Challenges Facing Government Lawyers

Time	Session
11:00am – 11:15am	Welcome and Opening Remarks [Transcript] Speakers: Paul C. Saunders, retired partner, Cravath, Swaine & Moore LLP, Chair, Judicial Institute on Professionalism in the Law; Henry M. Greenberg, Chair of the Commission to Reimagine the Future of New York's Courts; Hon. Janet DiFiore, Chief Judge of the State of New York
11:15am – 12:00pm	Government Lawyers as Guardians of the Rule of Law: A Goal or an Illusion? [Transcript] Speakers: Paul D. Clement, Partner, Kirkland & Ellis; Neal Katyal, Partner, Hogan Lovells, Paul and Patricia Saunders Professor of National Security Law, Georgetown Law Description: Please join us for a conversation between Paul Clement and Neal Katyal, leading members of the Supreme Court bar who have both led the U.S. Solicitor General’s office during past administrations. They will discuss the ethical challenges facing today’s government lawyers and whether the government lawyer can (or should) represent both the client's interest and the public's interest.
12:10pm – 1:00pm (Note: this is a time change)	Panel 1. How are Government Lawyers Different From Their Private Sector Counterparts in Their Ethical Responsibilities? Let Us Count the Ways. [Transcript] Moderator: Hon. Randall T. Eng, of Counsel, Meyer, Suozzi, English & Klein, P.C. Panelists: Karen M. Griffin, Chief Ethics Officer, New York City Law Department; Deborah A. Scalise, Partner, Scalise Hamilton & Sheridan LLP; Hon. Ellen N. Biben, Administrative Judge, New York County Supreme Court, Criminal Term Description: This panel will examine the potential conflicts which government lawyers must navigate in fulfilling their responsibilities to advise decision makers in the executive branch and/or the agencies which they serve. How should they react when they are asked to do something that they consider illegal, improper or a violation of the Rules of Professional Conduct? What should the lawyer’s response be? What if the superior is also a lawyer? Should the request be reported? To whom? Is “I was just following orders” a sufficient response in a disciplinary proceeding? CLE Reading Materials: W. Bradley Wendel, Government Lawyers in the Trump Administration, 69 Hastings L.J. 275 (2017). Kathleen Clark, Government Lawyers and Confidentiality Norms, 85 Wash. U. L. Rev. 1033 (2007).
1:00pm – 2:00pm	Lunch Break
2:00pm - 2:55pm	Panel 2. The Right Recipe for Independent Candid Advice: What Should Get Thrown In? What Should Get Left Out? [Transcript] Moderator: William E. Craco, Assistant General Counsel, Johnson & Johnson Panelists: Stephen Gillers, Elihu Root Professor of Law, New York University School of Law; Sara L. Shudofsky, Partner, Arnold & Porter; Zachary W. Carter, 78th Corporation Counsel for the City of New York Description: The Rules of Professional Conduct requires lawyers to exercise independent professional judgment and render candid advice. In doing so, the lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client’s situation. How does/should a government lawyer answer that question? Should the government lawyer give moral advice? Or advice as to whether the proposed conduct is in the public interest? What does independence mean for the government lawyer? CLE Reading Materials: W. Bradley Wendel, Government Lawyers, Democracy, and the Rule of Law, Cornell Law Faculty Publications. 2 (2009). W. Bradley Wendel, Law and Nonlegal Norms in Government Lawyers' Ethics: Discretion Meets Legitimacy, 87 Fordham L. Rev. 1995 (2019).
3:05pm - 3:55pm	Panel 3. Recalcitrant Clients: What to do When the "Client" Rejects Your Advice (or Worse)? [Transcript] Moderator: Michael A. Cardozo, Partner, Proskauer Rose Panelists: Loretta E. Lynch, Former U.S. Attorney General and Partner, Paul Weiss, Rifkind, Wharton & Garrison LLP; Steven Banks, Commissioner, New York City Department of Social Services; Rebecca Roiphe, Trustee Professor of Law, New York Law School Description: With whom does the government lawyer have an attorney-client privilege? Who is the government lawyer’s client? Whose “confidential information” should be protected? What should the lawyer do when directed by the lawyer’s superior not to take a legal position the lawyer believes the law requires? If the lawyer learns about wrongdoing in a confidential conversation with the lawyer’s superior should it be reported? To whom? Does the fact that the lawyer works for the government make a difference in what confidential client information must be reported? CLE Reading Materials: Michael A. Cardozo, The Conflicting Ethical, Legal and Public Policy Obligations of the Government’s Chief Legal Officer, The Professional Lawyer, Vol. 22 No. 3 [ABA Center for Professional Responsibility] (2014). Kathleen Clark, Government Lawyers and Confidentiality Norms, 85 Wash. U. L. Rev. 1033 (2007).
3:55pm - 4:00pm	Concluding Remarks [Transcript] Speaker: Paul C. Saunders, retired partner, Cravath, Swaine & Moore LLP, Chair, Judicial Institute on Professionalism in the Law

Time

Session

11:00am – 11:15am

Welcome and Opening Remarks [Transcript]

Speakers: Paul C. Saunders, retired partner, Cravath, Swaine & Moore LLP, Chair, Judicial Institute on Professionalism in the Law; Henry M. Greenberg, Chair of the Commission to Reimagine the Future of New York's Courts; Hon. Janet DiFiore, Chief Judge of the State of New York

11:15am – 12:00pm

Government Lawyers as Guardians of the Rule of Law: A Goal or an Illusion? [Transcript]

Speakers: Paul D. Clement, Partner, Kirkland & Ellis; Neal Katyal, Partner, Hogan Lovells, Paul and Patricia Saunders Professor of National Security Law, Georgetown Law

Description: Please join us for a conversation between Paul Clement and Neal Katyal, leading members of the Supreme Court bar who have both led the U.S. Solicitor General’s office during past administrations. They will discuss the ethical challenges facing today’s government lawyers and whether the government lawyer can (or should) represent both the client's interest and the public's interest.

12:10pm – 1:00pm

(Note: this is a time change)

Panel 1. How are Government Lawyers Different From Their Private Sector Counterparts in Their Ethical Responsibilities? Let Us Count the Ways. [Transcript]

Moderator: Hon. Randall T. Eng, of Counsel, Meyer, Suozzi, English & Klein, P.C.

Panelists: Karen M. Griffin, Chief Ethics Officer, New York City Law Department; Deborah A. Scalise, Partner, Scalise Hamilton & Sheridan LLP; Hon. Ellen N. Biben, Administrative Judge, New York County Supreme Court, Criminal Term

Description: This panel will examine the potential conflicts which government lawyers must navigate in fulfilling their responsibilities to advise decision makers in the executive branch and/or the agencies which they serve. How should they react when they are asked to do something that they consider illegal, improper or a violation of the Rules of Professional Conduct? What should the lawyer’s response be? What if the superior is also a lawyer? Should the request be reported? To whom? Is “I was just following orders” a sufficient response in a disciplinary proceeding?

CLE Reading Materials:

W. Bradley Wendel, Government Lawyers in the Trump Administration, 69 Hastings L.J. 275 (2017).
Kathleen Clark, Government Lawyers and Confidentiality Norms, 85 Wash. U. L. Rev. 1033 (2007).

1:00pm – 2:00pm

Lunch Break

2:00pm - 2:55pm

Panel 2. The Right Recipe for Independent Candid Advice: What Should Get Thrown In? What Should Get Left Out? [Transcript]

Moderator: William E. Craco, Assistant General Counsel, Johnson & Johnson

Panelists: Stephen Gillers, Elihu Root Professor of Law, New York University School of Law; Sara L. Shudofsky, Partner, Arnold & Porter; Zachary W. Carter, 78th Corporation Counsel for the City of New York

Description: The Rules of Professional Conduct requires lawyers to exercise independent professional judgment and render candid advice. In doing so, the lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client’s situation. How does/should a government lawyer answer that question? Should the government lawyer give moral advice? Or advice as to whether the proposed conduct is in the public interest? What does independence mean for the government lawyer?

CLE Reading Materials:

W. Bradley Wendel, Government Lawyers, Democracy, and the Rule of Law, Cornell Law Faculty Publications. 2 (2009).
W. Bradley Wendel, Law and Nonlegal Norms in Government Lawyers' Ethics: Discretion Meets Legitimacy, 87 Fordham L. Rev. 1995 (2019).

3:05pm - 3:55pm

Panel 3. Recalcitrant Clients: What to do When the "Client" Rejects Your Advice (or Worse)? [Transcript]

Moderator: Michael A. Cardozo, Partner, Proskauer Rose

Panelists: Loretta E. Lynch, Former U.S. Attorney General and Partner, Paul Weiss, Rifkind, Wharton & Garrison LLP; Steven Banks, Commissioner, New York City Department of Social Services; Rebecca Roiphe, Trustee Professor of Law, New York Law School

Description: With whom does the government lawyer have an attorney-client privilege? Who is the government lawyer’s client? Whose “confidential information” should be protected? What should the lawyer do when directed by the lawyer’s superior not to take a legal position the lawyer believes the law requires? If the lawyer learns about wrongdoing in a confidential conversation with the lawyer’s superior should it be reported? To whom? Does the fact that the lawyer works for the government make a difference in what confidential client information must be reported?

CLE Reading Materials:

Michael A. Cardozo, The Conflicting Ethical, Legal and Public Policy Obligations of the Government’s Chief Legal Officer, The Professional Lawyer, Vol. 22 No. 3 [ABA Center for Professional Responsibility] (2014).
Kathleen Clark, Government Lawyers and Confidentiality Norms, 85 Wash. U. L. Rev. 1033 (2007).

3:55pm - 4:00pm

Concluding Remarks [Transcript]

Speaker: Paul C. Saunders, retired partner, Cravath, Swaine & Moore LLP, Chair, Judicial Institute on Professionalism in the Law