Why it's a big deal that the White House Counsel knew about the IRS audit findings

2013's best new carnival ride, the Obama White House Scandalpalooza, continues to spit out new shocking headlines on a daily basis, and I wanted to put a spotlight on one detail regarding the targeting of conservative groups by the IRS. 

The administration admitted yesterday that the Office of the White House Counsel was informed about the findings of the IRS audit weeks ago - including specifically informing Kathryn Ruemmler, the Senior White House Counsel and the head of the office. 

President Obama somehow knew nothing about the whole mess until he saw it in the press with the rest of us little people. 

Why is this a big deal? 

Because attorneys have a ethical duty to keep their clients informed. 

The Office of the White House Counsel is the legal counsel for the President in his official capacity. There are some limitations, as Nixon discovered when he sought attorney-client privilege protections for his own personal matters, but in all other respects, the White House Counsel provides legal representation to the President, and are therefore bound by the same rules of ethics that govern all other attorneys.

Every bar association has a set of rules of ethics and professional responsibility, and these rules always include an obligation to keep the client informed. Here are some excerpts from selected bar association rules (Note the Model Rules are not official rules in any jurisdiction but are the rules promulgated by the ABA and used as a template by many local bar associations):

District of Columbia Bar Association, Rule 1.4 - Communication

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. 

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. 

Rules Regulating the Florida Bar, Rule 4-1.4 Communication

(a) Informing Client of Status of Representation. A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in terminology, is required by these rules; 
(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows or reasonably should know that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) Duty to Explain Matters to Client. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Model Rules of Professional Conduct, Rule 1.4 Communication

(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

The comments section of the DC Bar Rule 1.4 provides further illumination, specifically Comment [2]: "The lawyer must be particularly careful to ensure that decisions of the client are made only after the client has been informed of all relevant considerations. The lawyer must initiate and maintain the consultative and decision-making process if the client does not do so and must ensure that the ongoing process is thorough and complete."

In other words, the White House Counsel most likely committed a breach of legal ethics if Obama really was not informed about the findings of the IRS audit. An internal investigation that revealed such widespread abuses of power and violation of law in an agency under the Executive Branch is most certainly the type of information about which the President should have been informed. 

Either the White House Counsel violated ethical rules,
or we have a lot of flaming trousers.

There is no exception to this ethical duty for the purpose of giving a politician "plausible deniability" when the proverbial excrement hits the fan. 

The White House Counsel was absolutely obligated to keep the President informed of these matters, and either the attorneys violated their ethical obligations, or we are hearing some ridiculous, flagrant, bold-faced lies.

White House Spokesman Jay Carney is still sticking to the "Obama knew nothing" story for now. I'll let you be the judge of how credible he sounds.

In the famous words of Bette Davis' character Margo Channing in All About Eve, sounds to me like the White House needs to fasten their seatbelts, because they are in for a lot of bumpy nights.

Cheers to Jay Carney!

UPDATE: Sharing this from John Ekdahl, which sums up the whole situation pretty well, IMHO:

Image by John Ekdahl.

UPDATE II: Thanks to Jim Geraghty for linking my post in the Campaign Spot at National Review.

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