Bell Objects to Bethune’s Role

Posted July 9, 2004 at 6:55pm

The ethics lawyer for House Majority Leader Tom DeLay (R-Texas) faces a potential conflict of interest in the case due to his ties to a company caught up in an ongoing criminal investigation of Texas’ 2002 state races, according to a House Democrat.

Former Rep. Ed Bethune (R-Ark.), now a partner at the law firm Bracewell & Patterson, was recently hired by DeLay to defend against a House ethics complaint filed by Rep. Chris Bell (D-Texas.)

Bethune began serving as a registered lobbyist for the Burlington Northern Sante Fe Corp., a Texas-based railroad company in May 2001. Burlington Northern paid Bracewell & Patterson $720,000 for its lobbying work between 2001 and Dec. 31, 2003, according to federal records. It is unclear whether he or his firm is still doing any work for the railroad.

Separately, Marc Racicot, the former Republican National Committee chairman who is also a partner at Bracewell & Patterson, was selected for the Burlington Northern board of directors earlier this year.

Both Bethune and a spokesman for DeLay rejected the notion that Bethune was in any way compromised. DeLay plans to keep Bethune as his ethics lawyer, the spokesman added.

Burlington Northern may find itself under scrutiny during a criminal investigation by Travis County District Attorney Ronnie Earle. Earle is looking into the activities of Texans for a Republican Majority PAC (TRMPAC), a group founded by DeLay in September 2001.

Earle is looking into whether TRMPAC and other pro-GOP groups such as the Texas Association of Business violated Texas law by illegally steering millions of dollars in corporate contributions into Lone Star State legislative races in the months leading up to the 2002 elections. The use of corporate donations for political campaigns is illegal under Texas law.

Burlington Northern donated $26,000 to TRMPAC in October 2002, according to reports filed by the group with the IRS.

Earle has already subpoenaed a number of individuals with close ties to DeLay to appear before a grand jury in Austin. These include Jim Ellis, a top DeLay fundraiser, and DeLay’s daughter, Danielle DeLay Ferro, who serves as his campaign manager and as a TRMPAC consultant. DeLay himself has not been subpoenaed.

Bell, who filed his ethics complaint against DeLay last month, has more recently raised concerns about the Texas Republican’s decision to retain Bethune, citing his ties to Burlington Northern.

In his ethics filing, Bell alleged that DeLay, among other things, “used TRMPAC to illegally funnel corporate money to state races,” which would be a felony under Texas law. “Rep. DeLay engaged in this pattern of illegal conduct for the purpose of stealing control of the state House for the Republicans so he could then push through a radical redistricting plan designed to eliminate Texas Democratic seat in the United States Congress.”

Noting that Earle is continuing his criminal probe of TRMPAC, Bell said that if the ethics committee takes up his complaint and decides to investigate DeLay and TRMPAC as well, then Bethune could find himself in an untenable position. Bethune might find himself representing the Majority Leader during an ethics probe in which another client of his firm, Burlington Northern, could be drawn into.

If the two parties’ legal interests diverge at some point, Bethune or his firm could be placed into a conflict of interest.

In an interview, Bell said he also wants to know if Bethune had any role in the decision by Burlington Northern officials to donate to TRMPAC in the first place.

“Based on what we laid out [in the complaint] … I think the ethics committee needs to be made aware of the potential conflict” facing Bethune, said Bell. “If there is clearly a conflict, I think he should give up the case.”

Bell also wants to know “how all these corporate interests were steered to TRMPAC.” He cited donations made to TRMPAC by Westar Energy Corp. and Bacardi Inc., the liquor company. In both cases, House Republicans later pushed legislation favored by the firms. Bell calls this a pattern of “illegal solicitation … in return for official action benefitting such corporations” by DeLay.

Bethune “could be a ‘fact witness’ if he was the decision-maker [for Burlington Northern] involved in making the contribution to TRMPAC, and obviously he could have information bearing on the case,” Bell said.

Bell plans to write this week to the Committee on Standards of Official Conduct, as the ethics committee is formally known, to raise his objections to Bethune’s involvement in the DeLay case.

Bell’s ethics complaint against DeLay is pending. DeLay still has two weeks to formally reply to the ethics committee regarding Bell’s complaint.

Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington, said Bethune clearly faces a conflict of interest between his work for Burlington Northern and DeLay.

“The fact is, [Bethune] represents Burlington Northern, and Burlington Northern gave $26,000 to TRMPAC, and any way you face it, TRMPAC is Ronnie Earle’s investigation and is a large part of the ethics complaint filed by Chris Bell,” said Sloan, a former prosecutor and ex-Democratic Congressional staffer who has previously advocated ethics investigations of DeLay.

“There is no possible way that there is no conflict,” she said.

Bethune dismissed Bell’s and CREW’s complaints as overblown. “There is no conflict of interest here for a number of reasons, nor is one likely to arise,” he said.

“I don’t see any conflict,” said Bethune, who served in the House as an Arkansas Republican from 1978 to 1984. “In the ethics proceeding, there’s not likely to be a conflict arising on that issue. And I’m not the attorney of record in Texas on either the criminal or civil proceedings there. I think it’s just a specious issue.”

Regarding Burlington Northern, Bethune added that “while the firm represents them, I have not been the active partner on that account. … The likelihood that there would be a conflict which would create some sort of professional conflict of interest for me is slim to none.”

Bethune, though, declined to discuss any of his dealings with Burlington Northern, including whether he advised the company to give to TRMPAC.

After checking with Bracewell & Patterson’s general counsel, Bethune later stated that “the issue of a conduct under the professional code [of conduct for lawyers] is that if one client is not materially or directly adverse to another in a related proceeding, than there’s just no conflict.”

Bethune did not raise the issue of a potential conflict of interest with either Burlington Northern or DeLay prior to signing on as the Majority Leader’s lawyer for the Bell ethics complaint.

DeLay’s office also rejected Bell’s concerns about Bethune, suggesting that the Texas Democrat was attempting to deny DeLay of the use of the lawyer of his choosing.

“If Chris Bell was attempting to demonstrate that his entire effort to tear down Tom DeLay was a farce, utterly baseless and without merit, he just proved his case,” said Stuart Roy, DeLay’s communications director.

“The Democrats are scheming to rob Tom DeLay of his lawyer, who exposed the last partisan frivolous complaint as a sham, and they fear he will prove them fools this time. Once bitten, twice shy,” Roy said.

Ethics committee rules are silent on conflicts of interest for lawyers involved in ethics cases. The only thing the ethics rules stipulate is that a Member may hire a lawyer of his or her choice to handle an ethics complaint, and the legal bills for that lawyer must be paid for by the lawmaker.

Lawrence Fox, a partner at the firm Drinker Biddle & Reath and former head of the American Bar Association’s ethics committee, which promulgates rules of conduct for lawyers, suggested that Bethune probably should have made both DeLay and Burlington Northern aware of a potential conflict in this case.

“It does sound like, in order for Bethune to take on the representation of DeLay in the ethics case … he would have to discuss with Burlington Northern whether Burlington Northern objects to his taking on this representation,” Fox said.

Fox, however, added that Bethune’s conflict would disappear if both clients agreed to waive claims to a conflict of interest by Bethune.

Thomas Morgan, a professor at the George Washington University Law School and an expert on conflict-of-interest questions for lawyers, differed with Fox’s assessment. He said the interests of DeLay and Burlington Northern are actually the same, and thus there is no conflict for Bethune.

“I don’t understand why they both wouldn’t have the same interests. That is to say, they both want, presumably, the investigation to be resolved by saying what they did was appropriate,” said Morgan. “It doesn’t seem to me that there’s any issue of conflict [for Bethune] raised by that.”