Your Client Wants to Obstruct Justice.  How do you make the James Comey choice? 

By Mark T. Morodomi

You are a senior in-house counsel to a large family owned company run by a very powerful CEO, the patriarch of the family. You really love your job, and the salary helps pay for your kids’ college education. 

The company is under federal investigation, and the matter is assigned to you. The CEO invites you into his regal penthouse office in his historic headquarters building for a private one-on-one meeting. In the meeting, the CEO directs you to do something that will impede the investigation, and you fear that the CEO’s direction in and of itself may be an obstruction of justice. You are stunned that the CEO would even ask you to do such a thing. Dumbfounded, you leave the office without committing to do anything.   

What do you do now? 

Federal Bureau of Investigation Director James Comey was probably just as dumbfounded leaving the Oval Office after President Donald Trump asked him to “let Flynn go.”  

Luckily for you, in your situation as a California attorney there is at least a rule of professional responsibility to help guide your next actions.  California Rule of Professional Responsibility Rule 3-600, says that if an agent of an organizational client, like the CEO, “acts or intends or refuses to act in a manner that is or may be a violation of law reasonably imputable to the organization” your obligation is to “take such actions as appear to [you] to be in the best lawful interest of the organization.” 

The rule has a few suggestions:

• Urge the CEO to reconsider, while explaining the “likely consequences” to the company, or
• Refer the matter to the “next higher authority” in the company, including, if warranted by the seriousness of the matter, referral to the highest internal authority that can act on behalf of the company. Not too helpful if the CEO is the controlling owner of the company or the board of directors consists of the daughter and son-in-law of the CEO.

If all this doesn’t work and the “highest authority” in the company insists on taking the action, you are limited to “the right” and, “where appropriate,” the duty to resign. Leaking of privileged information is not allowed, unless “to prevent a criminal act that the member reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.” Rule 3-100. 

FBI Director James Comey’s relationship to the President was not governed by any attorney’s rules of professional responsibility. Comey’s immediate boss, Attorney General Jeff Sessions, was about to disqualify himself from the matter. So Comey couldn’t go to him. And there was no confirmed Deputy Attorney General at the time to act in Sessions’s place. And of course, President Trump is the “highest authority” in the executive branch. Is Congress a higher authority?

In the end, James Comey got fired.  What would you have done in his shoes?

Mark Morodomi is Senior Counsel, Governance in the UCOP’s Office of General Counsel.  Prior to joining the office, Mr. Morodomi was Supervising Deputy City Attorney at the Oakland City Attorney’s Office for twelve years, including service as counsel to the Oakland Public Ethics Commission and Oakland City Auditor and special counsel to the San Francisco Ethics Commission.  Before that, he worked ten years for the State of California Fair Political Practices Commission, as the Chief of Enforcement (Acting) and Senior Counsel. He received his undergraduate degree in Political Science from Stanford University, and his J.D. from New York University, School of Law.