How Did ECUSA Get its Attorneys?

from Anglican Curmudgeon by A. S. Haley

As this is a principled blog, let's start with some principles. I shall use as my authority the Model Rules of Professional Conduct as adopted by the American Bar Association, which have mostly been adopted without change by the various state bar associations.

Begin with Rule 1.13, which covers a lawyer's representation of an organization as a client. The Rule provides in part:

(a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.

. . .

(g) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization's consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.

Both David Booth Beers, who, as a former partner, is now "of counsel" to the Washington D.C. office of the law firm of Goodwin Procter, and Mary Kostel, who was formerly with that same office but is now an in-house special assistant counsel to the Presiding Bishop, have represented, and are representing, the Episcopal Church (USA) in litigation in various state courts. When they do so, then according to subsection (a) just quoted, their client is the organization itself, the unincorporated association of 100+ dioceses which make up the Church. (The localrules of the District of Columbia Bar Association do not vary significantly from the ABA's Model Rules.)

However, David Booth Beers is also the "Chancellor to the Presiding Bishop" under Canon I.2.5, who serves "as counselor in matters relating to the office and the discharge of the responsibilities of that office." And as just noted, Mary Kostel is the Presiding Bishop's personal assistant for litigation and discipline. So both Mr. Beers and Ms. Kostel have the Presiding Bishop as their client, as well. This is specifically allowed by subsection (g) quoted above, provided that the Church gives its "informed consent" to the dual representation through "an appropriate official of the organization other than the individual who is to be represented," or by the members themselves.

Note that, as "Chancellor to the Presiding Bishop", Mr. Beers is not "Chancellor to the Episcopal Church (USA)" as well. The latter position, if it were created (and it has not been created), would involve duties owed to the wider Church, such as appearing on its behalf in disciplinary proceedings (which role is currently filled by "Church Attorneys" under Canon IV). Nevertheless, when he puts his name on a pleading filed on behalf of "The Episcopal Church" in court (see the last page), he is representing to the court that he is the attorney for the whole Church. Thus he has engaged in two concurrent roles -- the first, as canonical advisor to the Presiding Bishop, and the second as attorney for the Episcopal Church (USA) in litigation.

Now here we encounter the first serious problem. Consent to dual representation of an organization and one of its officers is required by Rule 1.7 if there is a "concurrent conflict of interest," which the Rule defines as existing if:

. . . there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer . . .

Hmmm . . . let's see now: what "personal interest" of Mr. Beers could possibly interfere with his representation of both the Presiding Bishop and ECUSA itself? Could it possibly be the interest he has in Goodwin Procter, which is currently earning millions of dollars annually for all the litigation it is conducting in a dozen or more states on the Church's behalf? (I will get to the amounts and other details in a later post.) One would think so.

A second reason for requiring informed consent of the client is that the concentrated campaign of ECUSA litigation with Goodwin Procter at the helm did not really get under way until after Katharine Jefferts Schori became the Presiding Bishop of the Church in 2006. Long before that time, Mr. Beers began serving as the personal Chancellor to the Church's Presiding Bishops, and was also serving on the Church's Executive Council in 1991. (He is a man evidently used to wearing many hats.) Thus, his professional relationship with the ECUSA organization goes back for more than twenty years, and his recommendation that it engage his law firm to manage its litigation involved essentially a suggestion that would lead to his personal gain -- in a very substantial way.

In addition to the obvious solicitation issue (covered by Model Rule 7.3), there is a Model Rule of Professional Conduct which covers that situation, too: it is Rule 1.8, which provides in part:

(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:

(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;

(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and

(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.

Note that this Rule requires the informed consent of the client to the transaction, as well. A search of the digital archives of ECUSA's Executive Council revealed no resolution adopted between the years 1976 and 2007 which contained the words "Goodwin Procter", or even the words "legal services." A similar search through the resolutions adopted by General Convention also turned up nothing.

The question then arises: When did ECUSA give its "informed consent" to the engagement of the Chancellor's own law firm, at a cost of millions of dollars -- and who gave that consent? Two related questions are just as important: Who independently oversees the legal work that the Chancellor asks his law firm to perform? And who approves the payment of its bills?

Raising the issue of payment brings in yet another organizational client: since ECUSA itself cannot hold any money or other property, all expenses incurred on its behalf are paid by the Domestic and Foreign Missionary Society (of the Protestant Episcopal Church in the United States of America), which is a New York religious corporation. Its chief executive officer is the Presiding Bishop, and its board of directors is the Executive Council. So we are going in circles here -- everything comes back to the Presiding Bishop and the Executive Council.

The issue of the authority of the Presiding Bishop to authorize and conduct litigation on behalf of the whole Church was thoroughly analyzed in this paper by Mike Watson, Esq. for the Anglican Communion Institute. The bottom line is that the Presiding Bishop has never been so authorized by the organization which employs her.So the question then becomes: If the Presiding Bishop has no authority to conduct litigation on behalf of the Church, then how does she have the authority to engage her Chancellor's own law firm? Just how would the Church, through her, give its "informed consent" to the engagement?

The Model Rules define "informed consent" as follows:

"Informed consent" denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.

Given that he is associated with a very large law firm, David Booth Beers must have written a long and detailed letter to the Church informing it of "the material risks of and reasonably available alternatives to" the proposal to hire his own law firm while he continued to function as Chancellor to the Presiding Bishop. But the question is -- to whom did that letter go? For remember what Rule 1.13 says: the consent to dual representation must be given "by an appropriate official of the organization other than the individual who is to be represented." (Since David Booth Beers was a partner in Goodwin Procter [and is now "of counsel", a relationship signifying "a close, regular, personal relationship"], when he serves as Chancellor his law firm has the Presiding Bishop for a client, as well. Thus the entire law firm, and not just Mr. Beers, has the problem of obtaining informed consent to its dual representation of both the Church organization and its Presiding Bishop.)

The evidence of what independent oversight exists in ECUSA over the millions and millions of dollars it is spending on litigation is very slight and unsatisfactory. An attempt to bring the expenses of litigation into the open at General Convention 2009 was literally shouted down, on the ostensible grounds that it would provide information to "robbers." In responding to several queries from five bishops, two lawyers serving as the chairpersons of, respectively, the Executive Council's Standing Committee on Administration and Finance, and its Standing Committee on National Concerns, wrote in November 2007 as follows:

We have no knowledge of the amounts that are spent by Dioceses and Parishes on this litigation. As for the “national” Church, we know the amounts expended (none from the Church Pension Fund), and we also know of the many hours of lawyer time that have been donated at no charge to the Church. As it happens, we are both lawyers with very many years of experience with state and federal court litigation. We give you our professional opinion that the Church is receiving extraordinary value for the funds it does expend.

The first sentence of this paragraph is truly remarkable: as I made clear in this post and this one, the Executive Council has approved millions of dollars in gifts and loans from accumulated money left in trust for the Church's "mission efforts" -- in order to enable the putative "Diocese of San Joaquin", "Diocese of Pittsburgh" and "Diocese of Fort Worth" to carry on with their litigation (in which Goodwin Procter is also heavily involved). (The Council votes money for "clergy salaries" so that it can say that it is officially supporting "mission work" in those areas. This subterfuge enables the faux dioceses to spend their plate collections on legal fees. The sickness inherent in such chicanery lies at the heart of all that is wrong with the current Episcopal Church.) So it can hardly be the case that members of the Executive Council have "no knowledge of the amounts that are spent by Dioceses and Parishes on this litigation" -- or if it is, then the statement should be cause for great concern.

What is even more important is that the context of the two lawyers' statement would seem to make it clear that they have not been appointed to conduct, nor have they in fact conducted, a full-scale independent review of the monies being spent by the Church on litigation against former parishes and dioceses. They offer their informal, "professional" opinion only -- but based on what? They just do not say. Moreover, that opinion is offered in defense of a resolution adopted by the Executive Council which condemned the ability of dioceses to amend their own Constitutions. Since that resolution was obviously adopted on the advice of Mr. Beers, so that he could cite it (as he has) in litigation against those same dioceses, it is not as though the Council is receiving advice from a fully independent source.

All of this falls far short of what the professional rules of ethics require. Given that ECUSA is an association of member dioceses, those rules at a minimum would require that each and every diocese be fully informed of the potential conflicts from, and alternatives to, hiring the Goodwin Procter law firm. Such information would have to include assurances that the nature, quality and costs of the work would be independently reviewed by persons having no association (present or former) with the Chancellor and his law firm. It would appear that such "informed consent" has never been sought or obtained.

In response to being brought down in Fort Worth by a Rule 12 motion challenging his local attorneys' authority to represent the Diocese of Fort Worth and its Corporation, David Booth Beers recently had those attorneys file a counter-motion under Rule 12 against Bishop Iker's attorneys; it is due to be heard in Hood County District Court on September 2 -- just six days before oral arguments go forward in the writ proceedings in Fresno. But as just shown, David Booth Beers is the last person who should be challenging the hiring of other people's attorneys.

In a subsequent post, I shall give a detailed history of the enormous growth of the Church's legal and litigation budget under the advice and counsel of Mr. David Booth Beers and Ms. Mary E. Kostel.