OEDEL: Independent counsel

April 6, 2014 

They called him judge for a reason. Mercer law alumnus Griffin Bell served on the U.S. Circuit Court of Appeals for 14 years before returning in 1976 to private law practice at King & Spalding. Later, Judge Bell was tapped by President Jimmy Carter to serve as U.S. Attorney General, a role Bell ethically rehabilitated after its trashing by John Mitchell under President Richard Nixon. To ward against undue influence, Bell posted lists of those who contacted him, from White House officials on down.

Returning again to King & Spalding after serving as attorney general, Judge Bell helped pioneer “internal investigations” by law firms into controversies about conduct within institutions that have drawn public concerns, often about possible criminal activities by institutional agents.

How impartial are investigations conducted by lawyers being paid by organizations under investigation? Former officials of E.F. Hutton, a financial firm, might warrant that Bell himself, though entrepreneurial, could be impartial. Bell publicly opined, on Hutton’s nickel, that some Hutton officials probably had committed crimes in a check-kiting operation. Bell was later sued but ultimately vindicated for expressing that view. Bell went on to lead careful investigations into controversial matters like the Exxon Valdez oil spill and Dow Corning breast implants.

Corporations aren’t the only organizations paying for so-called independent investigations. Presidential wannabe Chris Christie, incidentally New Jersey’s governor, recently directed that New Jersey’s taxpayers pay a cool million to get a quick report from a law firm Christie trusted, Gibson, Dunn & Crutcher, opining that Christie had nothing to do with the politically vindictive access closings on the George Washington Bridge. Was that investigation for New Jersey’s benefit or Christie’s?

Gibson Dunn’s spokesman Randy Mastro emphatically proclaimed Christie’s utter ignorance of vindictive motivations. Mastro's credibility seemed shaky, though, considering that Gibson Dunn didn’t interview several key Christie associates who declined to cooperate. Does a Christie associate’s desire not to incriminate oneself mean that Christie is vindicated? Mastra seemed to jump to that conclusion. Other conclusions are possible.

For judicial-quality legitimacy, an internal investigation requires evenhanded, dispassionate removal from the matters under consideration. That’s why it was surprising that King & Spalding recently accepted General Motors’ invitation to participate in an internal investigation of GM’s handling of ignition defects, allegedly covered up and allegedly causing deaths.

Were Bell still alive, King & Spalding, which vigorously defended GM in ignition-defect cases, probably would not have agreed in effect to investigate itself as an agent of GM. But Bell died five years ago.

Though no saint, Bell had the good sense to know that you can’t credibly investigate yourself. Lawyers call that, among other things, a conflict of interest. Bell knew better than to attempt the judicially impossible.

Christie and King & Spalding apparently weren’t the only ones to overlook why the public worries about conflicts of interest.

A former Macon mayor’s firm, for instance, was known to represent different, potentially adverse interests in public ­­­bond deals. Moreover, a former counsel to Macon’s Planning & Zoning Commission improperly represented applicants to the same commission that also paid him.

Questions about conflicts of interest did not disappear here in Macon when those late officials passed away.

Bibb District Attorney David Cooke recused himself from the Promise Center controversy because of his own involvement on a related board of Promise partners.

Cooke’s conflict was minimal. There appears to be more serious contemporary conflicts involving local players that I’m presently fact-checking.

The office of Georgia’s attorney general, called to explore whether financial crimes were committed in connection with former Superintendent Romain Dallemand’s tenure here in Macon, invited Bibb’s board of education to explain why crimes might have been committed under its watch.

If crimes were committed, might that not put the BOE in an unfavorable light as the supervisor of Dallemand? The BOE shouldn’t be counted on to direct any investigation of itself. Instead, Georgia Attorney General Sam Olens should consider appointing a special prosecutor to work in tandem with U.S. Attorney Michael Moore.

Judge Bell knew that independent judgment and conflicted loyalties are at odds. May that wisdom never rest.

David Oedel teaches law at Mercer University law school.

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