Federal Ethics Considerations
Media coverage regarding Emhoff’s departure has focused on the inapplicability of 18 U.S.C. § 208 to the president and vice president; section 208 sets federal conflict-of-interest standards, disqualifies government officials from certain matters, and imposes criminal penalties. News articles have also noted that the constitutionality of enforcing other ethics laws against those officials is much debated but unresolved in court, ultimately concluding that while the Second Gentleman’s departure is not strictly required by federal ethics laws, there can be little question that it is the right thing to do.
Model Rule 1.7(a)(2)
The media have not taken into account the ABA’s Model Rules of Professional Conduct—in particular, Model Rule 1.7 (Conflict of Interest: Current Clients), which more decisively supports Emhoff’s departure. Model Rule 1.7(a)(2) generally precludes a lawyer from representing a client if there is a “significant risk” that the representation of one or more clients will be “materially limited” by a personal interest of the lawyer. Comment 11 to Model Rule 1.7 identifies marriage as precisely the sort of personal interest that may interfere with loyalty and independent professional judgement and pose risks that client confidences will be revealed.
Emhoff does not personally represent his firm’s lobbying clients, but his past clients include Merck, Abbott Laboratories, Walmart, and the arms dealer Dolarian Capital. In the midst of a once-in-a-century pandemic, pharmaceutical clients likely have a significant stake in executive policy. Even if the Second Gentleman’s representation of those clients was wholly divorced from any issues on which his wife may weigh in, the risk of conflict between the clients’ best interests and White House policy at least arguably cautions against ongoing representation.
Model Rule 1.11
Model Rule 1.11 (Special Conflicts of Interest for Former & Current Government Officers & Employees) does not strictly apply to the Second Gentleman, whose position is unpaid. But the principles behind the rule’s general prohibition against representing (i) clients in connection with matters in which the lawyer participated personally and substantially as a public officer or employee and (ii) clients whose interests are adverse to a person about whom the lawyer acquired materially disadvantageous confidential government information while a public officer or employee may also weigh in favor of Emhoff stepping away from his practice, at least temporarily.
Ethical Alternatives to Severing All Ties
Short of resigning, Emhoff could have minimized potential conflicts on the law firm side by moving to a nonpartner role (as John White of Cravath, Swaine & Moore did when his wife Mary Jo headed the U.S. Securities and Exchange Commission during the Obama administration) or fully walling himself off from exposure to information about firm clients’ lobbying efforts directed to, or litigation against, the government. Still, his mere presence at the firm could arguably raise speculation that clients hired his firm in hopes of swaying the administration.
Life after Big Law
The verdict is still out on how the Second Gentleman—who described himself in an October 2020 Marie Claire interview as, until recently, “just a lawyer with kids trying to make a living”—will spend his time after shedding his Big Law responsibilities. He is indisputably overqualified for a ceremonial second spouse role. Who knows? Maybe someday Doug Emhoff will join Jackie Kennedy as a (vice) presidential spouse for the history books.