Fordham Law Professor Bruce Green is quoted in a Lawfare article outlining potential conflict of interest in Cassidy Hutchinson’s testimony before the United States House Select Committee on the January 6th Attack.
I asked Bruce Green, a legal ethics professor at Fordham Law School, about this exchange. “The client is entitled to know who is paying her legal fees, so that she knows precisely to whom the lawyer may be beholden, and so that she can ultimately make a fully informed decision whether the lawyer is likely to represent her with undivided loyalty,” Green wrote back in an email. “Passantino’s refusal to tell her suggests that he felt a paramount duty of loyalty and confidentiality to someone else. That’s troubling.”
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If Passantino’s partners were representing Trump at the same time he was representing Hutchinson, according to ethics professor Green, the Model Rules would call for him to have had Hutchinson “confirm[] in writing” her waiver of the potential conflict. The pertinentD.C. Rule does not require such a writing, but the commentary to it still counsels that “[i]t is ordinarily prudent for the lawyer to provide at least a written summary of the considerations disclosed and to request and receive a written informed consent.”
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According to Green, of Fordham Law School, it is true that Hutchinson had no obligation to volunteer this story to the committee. But if asked about it directly, she was obliged to answer truthfully. “Hearsay rules and other rules of evidence don’t apply,” he writes, “and even if they did, she couldn’t invoke them.”
Read “Cassidy Hutchinson’s Take on Her Trump-World Lawyer—and Why It Still Matters” in Lawfare.