In All Seriousness

Okay, most everyone likes my web of connections between Michael Jackson and Scott Petersen. But, there are a few who are sticklers for facts and details and tend to lack a sense of humor.

I put that comment on an election law listserv I belong to with Ben Ginsberg and Robert Bauer. One of the other participants sent along this post, which does legitimately sum up the law.

The legal issue involved here is not as trivial as Erick-Woods Erickson
suggests in his sarcastic e-mail.

The analogy to the Laci Peterson – Michael Jackson cases is inapt.
Here’s why:

The Laci Peterson & Michael Jackson cases are completely unrelated to each other. Nothing that Mark Geragos learned in the course of representing Scott Peterson is relevant to his representation of Michael Jackson, and vice versa.
If the two representations were substantially related and if Peterson and Jackson were adverse to each other, then the ethics rules (at least in Model Code & Model Rules states) would prevent Geragos from taking on the second client.

The efforts of the Bush campaign and the Swiftboats group are related to each other. It is possible that Ginsburg could have learned information in the course of representing the Bush campaign that would be relevant to his representation of the Swiftboats group, and vice versa. Bush and the Swiftboats group are not materially adverse to each other. In fact, they are aligned with each other. So the issue is not a traditional conflict of interest. But election law mandates that 527s must not coordinate their activities with candidates’ campaigns. If I understand the state of the law correctly, it is not entirely clear precisely what kind of “coordination” is prohibited. The legal issue, it seems to me, is whether the use of the same personnel — in this case the same lawyer — by the campaign and the 527, in and of itself, constitutes coordination.

Put another way, do 527s have to enforce walls of separation from the campaigns, or not? Can they use the same personnel, or not?

I should add that the person, who shall remain nameless because I did not ask before post this, is a law professor.

As those of you who went to law school know, law professors are much more prone to ulcerate about issues like this than people who actually practice law full time.

While the points in the email are valid, including my sarcasm, I think it is besides the point. The functions that Ginsberg is advising both parties on is distinct and the presumption should be that lawyers, especially someone like Ben Ginsberg, are ethical and able to represent multiple clients maintaining a veil of confidence.

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Erick Erickson

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