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Bennett & Bennett . . . and Never the Twain Shall Compete

By Saundra Torry
Washington Post Staff Writer
Monday, October 13, 1997; Page F07

The legal fraternity was treated to one of those unlikely, only-in-Washington moments last week, courtesy of Robert S. Bennett.

On Tuesday, Bennett sat watching his client, former White House deputy chief of staff Harold Ickes, defend White House fund-raising practices before a Senate investigating committee.

That same day, Bennett fielded questions from the press for another high-profile client – President Clinton – defending the president on the latest issues coming out of Paula Corbin Jones's sexual harassment lawsuit.

Hey, is Bennett the only lawyer in town?

Sometimes it looks that way, and it is this picture that makes some defense lawyers squeamish: Here are a bunch of Republican senators grilling Ickes about alleged fund-raising abuses by his former boss, Clinton, and here is the president's lawyer sitting behind Ickes as his counsel, too.

"The appearance is not good at all," groused one lawyer, who insisted on not being identified. People are "smirking and laughing and saying, 'How come there's a different set of rules' " for Bennett?

Bennett responded last week in typical fashion: "I am so tired with these wannabes and second-guessers. They just take their little shots.

"It is simple," Bennett continued. "I am not representing the president in the fund-raising case, and there is no conflict. . . . These lawyers are just carping. These people just don't know the facts." And, an irritated Bennett added, the critics are "never willing to be named."

Two legal ethics experts and several white-collar lawyers agreed that they saw no ethical conflict in Bennett's representation of both men, as long as he has investigated the issue, talked it out with both clients and gotten their approval.

"The question is: Is there any reasonable possibility the dual representation would impair his representation of one or the other?" said Hofstra University School of Law ethics expert Monroe Freedman. "I don't see it here."

Lawyers deal with such conflicts all the time. The law firm of Williams & Connolly – which represents Clinton in the Whitewater and fund-raising investigations – has turned down at least one potential client in the fund-raising case saying the representation would not benefit either that person or the president, according to a source familiar with the case. In that case, the issue is more stark because both clients need representation in the same matter.

The Clinton-Ickes issue is more muddied. As defense lawyer Alan Strasser said, "It made me pause, until I sorted through the various aspects of it." Then, Strasser came to the same conclusion as other experts: no problem.

This is not the first time that Bennett's representation of two Washington powerhouses has created controversy.

Bennett began representing the president in the sexual harassment case in May 1994. At the time, Bennett was representing House Ways and Means Committee Chairman Dan Rostenkowski, who was doing battle with the Justice Department over an impending felony indictment. Some argued that representing Clinton at such a critical juncture ill-served Rostenkowski because of the possible appearance that the president's lawyer was pressing Justice officials for a deal for the powerful Democratic congressman. Bennett and Rostenkowski parted ways within weeks of Bennett's hiring by Clinton, and the debate over Bennett's actions swirled for months.

Bennett and several colleagues defended his actions.

As to the current representation of Clinton and Ickes, Bennett said he discussed the issue with both men when Ickes sought his counsel in the fund-raising probe. Bennett had represented Ickes on other matters, including Whitewater, even before he took on the president as a client. Ickes' "attitude was, 'I do not think there is a conflict, and if there was, I waive it,' " Bennett said.

Bennett said criticism may have been fueled by an earlier "bad [news] story that Ickes was mad at the president and was trying to get revenge." After Clinton's reelection, Ickes was passed over for the job of White House chief of staff and he left the administration a short time later.

Under ethical codes, an attorney may not represent two clients, if their interests conflict. In such a case, the lawyer must give up one of the clients.

For now, Bennett is representing Ickes as a witness at congressional hearings. "The screws would tighten if Ickes were the subject of a criminal investigation," said Stephen Gillers, an ethics expert at New York University Law School. What if Ickes said he could provide information detrimental to Clinton? Bennett could not represent him in that situation.

"It is a potential risk that an experienced, skilled counsel such as Mr. Bennett is going to explore in depth to minimize and hopefully eliminate," said D.C. defense lawyer Earl Silbert. "Assuming both clients give fully informed consent, it is ethically appropriate to undertake the representation."

Still, some critics argue that investigations can carry surprises, and down the road the dual representation could create an unexpected mess for lawyers and clients alike. One defense lawyer said he simply avoids even the possibility of such problems. "A lawyer has to focus a sharp light," he said. "If you are diffusing that light as to what is best for two different people, you may not see something you should see."

Given Ickes' staunch defense of the White House at the hearings last week, a break between Clinton and his former aide seems "pretty remote," Hofstra's Freedman said.

During Ickes' appearance before the Senate Governmental Affairs Committee last week, Bennett had little to do but watch. He sat behind Ickes, a combative New York lawyer whose performance before the committee won the grudging admiration of some of its members.

Indeed, Bennett was heard from only once during the two days Ickes appeared.

On Tuesday, as the committee broke for lunch after a morning of partisan wrangling, reporters swarmed around Ickes and asked, "Is this the show you expected?"

Ickes looked like he was itching to answer, when Bennett's voice was heard in the background: "Be careful."

With that, both men left without another word.

Law Suit

And speaking of Bob Bennett, here's a fashion note.

Fashion? Bennett?

Never before have these words been uttered in the same breath.

But last month Bennett was the featured speaker at a "political salon" hosted by Neiman Marcus, Italian designer Ermenegildo Zegna and George, the magazine published by John F. Kennedy Jr.

Bennett – who has been most often described as "disheveled" but has been taking sartorial lessons from fellow defense lawyer Plato Cacheris – was fitted with a Zegna suit for the occasion. Very chic.

"He looked dashing," said a George spokeswoman, and others who caught his act at Morton's steakhouse on Connecticut Avenue NW echoed her appraisal.

Does Bob get to keep the suit? George offered one of those vague, lawyerly replies: "We made a contribution to . . . one of Bob's favorite charities."

Yes, but the suit? "It was fitted for him," the spokeswoman said. "And it would be rude to lend a suit and take it away."

Administrative Law Honors

Outside of the administration, few people have ever heard of the Justice Department's Office of Legal Counsel. But since 1953, it has provided legal opinions, often on the most sensitive of issues, to the president and his Cabinet, and the lawyers who have headed that office certainly have done well.

Take, for instance, Chief Justice William H. Rehnquist, Associate Justice Antonin Scalia, federal appellate judge J. Michael Luttig, former attorney general William P. Barr and former acting solicitor general Walter Dellinger. This Thursday they and nine other former heads of the office will be honored at a Washington dinner hosted by the American Bar Association's administrative law section.

Malcolm R. Wilkey, who as head of the office during the Eisenhower administration goes back the furthest, also travel the farthest to attend – from Santiago, Chile. Coming from a bit closer by will be D.C. lawyers Theodore Olson and Charles Cooper.

© Copyright 1997 The Washington Post Company

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