News to Cromley: Conflict Over Conflicts

October 6, 2008, 7:45 a.m., 11:30 a.m. (addition of relevant links)

Conflicts About Conflicts of Interest
While the world evaluates our $1.3 trillion transfer of wealth from the middle class to the wealthy --

(along with the law's built-in earmarks for rum and wooden arrow heads) by depressing the value of global stock exchanges by about 5% (and trillions of dollars), we learn there are over 750,000 Americans who lost their jobs so far this year, 80% of Americans think they will be adversely affected economically, the British and American generals are telling us there cannot be a military "victory" in Afghanistan, voters watched the vice presidential candidates' debate like NASCAR fans watching for a crash that never happens

-- meanwhile, Marc Mills remains in the news with the petition for his reinstatement and two Iowa City lawyers duking it out over Stolar's charges of Mills' "conflict of interest."

Brian Morelli, "Faculty Circulating Petition to Reinstate Mills," Iowa City Press-Citizen, September 30, 2008, 4:23 p.m.

David Roston, "Pinpointing Mills' conflict of interest," Iowa City Press-Citizen, September 27, 2008

Mark Schantz, "Refuting Mills' 'conflict of interest,'" Iowa City Press-Citizen, October 4, 2008.

David Roston is the former chairman of the Chicago Bar Association Committee on Professional Responsibility. Mark Schantz was the University of Iowa's general counsel from 1992 to 2005.

David Roston wrote, "His [Marc Mills] responsibility was to protect the legal interests of the AD [Athletic Director/Department] and the university by assuring compliance with law and insulating it from liability. If Mills had made that responsibility clear to the student-athlete and her family, they would have known right off the bat that he was not going to protect their interests in this matter and that they should not rely on his help."

Mark Schantz responds, "Roston indicates that an attorney for the university should, when speaking with persons such as the student athlete's father, advise them that he is the university's attorney, not theirs. Mills did so, a fact about which there appears to be no dispute. Insofar as Roston implies otherwise, he is mistaken."

Roston charges, "Mills' failure to advise the Iowa state Board of Regents of the letter from the student-athlete's mother is analogous to the general counsel of a corporation failing to advise its board of directors of facts concerning an issue which it has decided to investigate. . . . The regents were his client, and it appears that he failed to provide them with important information because he thought that he had an obligation to the student-athlete and her family."

Schantz responds,

"[I]n the eyes of Iowa law, the Board of Regents exists separate and apart from the universities it governs. Chapter 13 of the Iowa Code makes completely clear that the attorney general of Iowa is the regents' lawyer. The board, therefore, is not the "client" of the university general counsel.

In the 13 years I served as university counsel, I recall no occasion when the board considered me to be its lawyer. . . .

Once it is understood that the regents were not Mills' client, the matter of whether and by whom the regents should have been advised concerning the critical letters from the student-athlete's mother takes on quite different coloration.

The Iowa Code is quite clear that the regents govern the institution by and through the president of each university. As a practical matter, the president directs regents communication downward to university officers and communication from university officers upward to the regents. I would not have made any official communications to the Board of Regents without the president's knowledge and approval. Nor, I am sure, did Marc Mills.

Roston also charges, "His [Mills'] responsibility was to protect the legal interests of the . . . university by assuring compliance with law and insulating it from liability."

Schantz responds,

Roston's final error, which also is reflected in the Stolar Report, is his misconception that the sole function of university counsel is to "insulate (the University) from liability."

University policies, however, reflect a variety of university interests, often described in rather general language, and university lawyers regularly are involved in trying to reconcile or balance the different interests reflected in those policies.

The university wishes, for example, to encourage victims of sexual assault to report such events and . . . also wishes to ensure that students accused of sexual assault are provided a fair hearing . . .. Balancing those competing interests is part of a lawyer's job, and it is not primarily about preventing liability. The fact that a large entity frequently pursues different interests does not mean its lawyer has a "conflict."

I cannot know, and won't speculate, why David Roston would have written what he did. From my own perspective, Mark Schantz clearly has the more persuasive analysis.

But this is more than just a "he-said-he-said."

As Schantz concludes, "Accusing an Iowa lawyer of 'conflict of interest' is to accuse one of violations of the Iowa Rules of Professional Responsibility. Such allegations are defamatory and actionable if false, as I believe I have shown they are, with respect to Marc Mills."

Links to Related Documents
Marc Mills

Stolar Partnership, "Special Counsel's Report [The Stolar Report], State of Iowa Board of Regents, University of Iowa Internal Investigation," September 18, 2008 (a pdf file):

"[T]he General Counsel's involvement as liaison for an alleged victim of sexual assault is improper, given the perceived (if not apparent) conflict of interest with the General Counsel acting in such a capacity." p. 12.

"Marcus Mills’ involvement in micromanaging the University’s response to the
incident presented a serious conflict of interest." p. 60.

"The role of the University’s General Counsel is to represent the University and its
Executive Officers, Administrators, Faculty and Staff, all in their official capacities. As legal counsel for the University, there is a substantial appearance of a conflict of interest if such counsel is dealing with an unrepresented complainant." pp. 60-61.

"The Office of the General Counsel should never have assumed a supervisory role
in the investigation of the incident. To do so was an inherent conflict of interest." p. 72.

_______________
Marc Mills, "Response of the General Counsel to The Stolar Report," September 23, 2008, see generally pp. 2-3, "Conflict of Interest":

"The Report does not cite the applicable rule [Iowa Court Rule 32], much less identify any specific provisions violated by Mr. Mills.

"[A] conflict of interest does not arise merely from communication between a lawyer and an unrepresented party, even a potentially adverse party. Indeed, the conflict of interest provisions of Rule 32 do not apply in such situations."

"Lawyers in these situations are guided by Rule 32:4.3, 'Dealing with Unrepresented Person.' ("In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. . . .").

"The facts indicate that Mr. Mills acted wholly and appropriately within the bounds of Rule 32:4.3 in his dealings with the father. At no time did Mr. Mills suggest or otherwise give the impression that he was disinterested. . . . The father never indicated to Mr. Mills that he misunderstood Mr. Mills' role and Mr. Mills never gave legal advice to the father. [Thus, he] did not violate either the letter or the spirit of the applicable ethical rule."

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