Clinton and Petraeus: Is the Current Client the Only One?

David Petraeus had an estimable criminal lawyer. So now does Hillary Clinton.

Yes, both Petraeus and Clinton have been (are) ensnared in scandals over their alleged compromise of national security by allowing classified materials that transact official business of the United States to go onto (or into) unsecure venues. In Petraeus' case, by his delivering hard copies of classified materials to his (how shall I say?) "girlfriend" who was writing a book about "her guy." In Clinton's case, over an email system not secured by her State Department account, and for purposes unknown -- because other Secretaries of State had done so; because it was convenient; maybe to help the Clinton Foundation; or perhaps she was trying to help protect or advance her 2016 presidential aspirations. Who knows?

In both cases, it is a big deal -- not because the security of the United States has been breached. It doesn't appear that that occurred in either instance. It's that the law simply makes it criminally punishable to release classified information by insecure means, although different criminal statutes are implicated in these two cases (Petraeus having distributed hard copy documents). Which is not to say that Clinton is guilty of any wrongdoing; she certainly maintains that she is not, although one wonders if this latest debacle will cause her dream of being the first woman president to be possibly pulled out from under her. As for Petraeus, he resigned as Director of the CIA as soon as his issue was first aired and then negotiated his price -- a misdemeanor conviction, probation and restitution.

But is it even relevant that Clinton hired the same lawyer who represented Petraeus? David Kendall of the titan law firm Williams & Connolly is one of the most respected lawyers in the country -- the Clintons have known him since law school and he successfully represented President Clinton in the criminal investigation and the impeachment trial that stemmed from it. http://www.nytimes.com/2015/08/24/us/from-whitewater-to-email-david-kendall-the-clintons-dogged-lawyer.htmlYet some of the public is likely to wonder if Kendall's representation of both Petraeus and Clinton should label or define him, as the go-to lawyer for those with alleged national security issues. Meaning, some will try to paint the Clinton representation by Kendall through the prism of his (dual) representation of both Petraeus and Clinton. But shouldn't a lawyer's prior clients - it actually appears that he represented Clinton while the Petraeus case was still underway - be irrelevant to a news story about his current client, regardless of whether he was successful in that prior representation?

Sure, the public and the press can wonder aloud about myriad facts in the unfolding drama -- the same prosecutor is handling both cases on behalf of the governmenthttp://www.breitbart.com/big-government/2015/08/14/david-petraeus-prosecutor-on-hillarys-tail/; David Kendall is representing yet another public servant who is alleged to have allowed secure communications to be in an unsecure arena; and, parenthetically, the two clients have their own history. Then-Senator Clinton publicly attacked Petraeus, as commander of the American forces in Iraq, essentially accusing him of being dishonest about the impact of the "surge."

But let's get back to David Kendall. Suppose the Clinton emails become a bigger issue - more tangible than "it simply [or really] doesn't look good." And, suppose it becomes necessary at some point for Kendall - who typically doesn't speak to the press -- to distinguish (maybe simply for the voting public) what Clinton did from what Petraeus did (remember, he resigned his position and pleaded guilty); after all, a lawyer must sometimes, in the interest of his client, speak to the press whether he likes to or not. Can Kendall publicly (or even in private meetings with the Justice Department designed to "kill" a potential prosecution) properly say, if he thinks it will help his cause, that (Director) Petraeus had done something far worse in, perhaps cavalierly, deliberately letting his love interest see classified information, whereas (Secretary) Clinton had a much better or at least (real world) acceptable reason to communicate through a non-secure, non-government server?

Certainly Clinton supporters hope it never gets to that place. But if it does, what does the skilled, ethical lawyer do? Can he simply deal with Clinton's current issue as the only thing? Or can he expect -- must he expect -- that the press and the public will ask the damning question: Petraeus pleaded guilty, why shouldn't Clinton be prosecuted?

Look, I'm not saying Kendall should say, in trying to help Clinton, that Petraeus was -- how to put it -- overwhelmed by his love interest; operating "under the influence," as it were. No. He can, should and I suspect will (if it ever gets to it) use his considerable skills as an advocate to portray the obvious differences in the two cases. He has only one client now with this problem, and must put her best foot forward. But he cannot do so by throwing his former client under the bus. Just imagine the harangue he would (understandably) get from Hillary, not to mention the presumably more graphic version from Bill, if the Clinton representation had been first and Kendall chose to use the negatives in her case to help Petraeus.

The truth of the matter is that the able lawyer can usually navigate the treacherous shoals of representing separate (public) individuals with allegedly similar problems. But if you're the second client up to bat, you should probably realize that your lawyer may be put in an unfortunate predicament -- you want him to lower the boom on the earlier client in order to make his best case for you. If it comes to it, you might want him to argue (to the public, to the government, to a court or all three) that Petraeus did what he did for self-aggrandizing purposes -- giving his girlfriend classified information to help paint him as even more of a hero in her book -- whereas Clinton's purpose was far different, far less disturbing. But how could Kendall do that?

Lawyers have ethical constraints which flow to all clients -- past and present. One, he has a duty of "confidentiality" that, even though the earlier representation is over, still restricts him from disclosing what he learned from a prior client or, actually, by virtue of merely representing him. So, even if not "privileged," the lawyer can't disclose what he learned while representing the prior client, particularly if the facts are worse than the public knows, even if those facts make the earlier case even more distinguishable from the current. Two, he has a duty of "loyalty" that restricts him from being "disloyal" to his former client by possibly painting him in a bad light, even if his purpose is to help another client.

And, three, the lawyer has and will continue to have those same duties to you (and perhaps to himself). The world is round: every client needs to know going into the attorney-client relationship that while he will be the lawyer's "only client," put simply, the client cannot succeed in asking his lawyer "to do unto others what he wouldn't want done to himself." Yes, based on this protocol, one can be confident that when his third (somewhat similar) client comes along, your secrets and reputation as his second client will remain intact, as least in terms of what your (former) lawyer is willing to say about you in order to best defend his third client.

Make no mistake -- the second client will want his lawyer to use every resource to learn "distinguishing" or troubling facts about the first case. But recognize that when a defendant (first client) pleads guilty, as Petraeus did, the give and take of the plea negotiation process may persuade the prosecutor to leave certain incriminating things on the cutting room floor so that they will never see the light of day. An agreed upon guilty plea often only addresses the visible part of an iceberg. And the second client might want (need) the iceberg below the water line to be exposed.

Is that problem solved by hiring a different lawyer? Maybe. However, a different, less ethically impaired lawyer for the second client won't learn those facts about the first because he doesn't have access to either the first client or the government's discussions with the first client's lawyer. On the other hand, that second lawyer won't find himself in any way restricted from using every (ethical) resource possible to learn them and, importantly, to share them with the world (or at least the government, and if necessary a court). To be sure, the task of making sure nothing you do (or don't do) compromises your client's chances of becoming president is a very big deal!

Do not think Clinton will be shortchanged in the process. She will get excellent representation, and the Petraeus issue will be delicately handled. But this still needs to be said for the broader lesson to be learned: there are many other, extremely able, lawyers who swim vigorously in the same sea. The intelligent client should and will recognize that there will be some inhibitions that may restrict the lawyer she ideally wants to represent her that won't exist for another equally able lawyer. The unsophisticated client - and likely the sophisticated one too - probably needs counsel on this issue from an advisor more sophisticated than she.

Mrs. Clinton is a very sophisticated woman, and unquestionably she (counselled by someone no less strategic-minded than the former President of the United States himself) has surely thought it through -- although maybe even she shouldn't rely on that sophistication in choosing to give up having a lawyer with a more fully loaded gun. That's what a consultation with an independent lawyer is for, and maybe she has actually had one. In fact, Kendall may have encouraged precisely that.

Lest it go unsaid, however, I personally wouldn't worry about Clinton having an arguably conflicted lawyer, without her having made a conscious decision, knowing everything she needs to know, that he is the right man for the job.