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Yes my assertion is indeed "It doesn't make sense to think the general counsel of a company is not supposed to be vetting files before they are disclosed to an outside party" and I stand by that position. You saying that I'm wrong is not enough to make it so. Can you actually explain how I'm off-base? As best as I can tell so far the issue seems to be that I'm not credulously accepting whatever Elon Musk said. I already explained why I'm suspicious of his claims, which part of my argument do you object to?
Do lawyers have any professional standards for conflicts of interest?
Yes, governed by model RPC 1.7 and 1.8 but I don't know how they would be applied for a general counsel exactly. Conflicts are most often considered "waivable" where so long as you have the informed consent in writing from the client it's not a problem. Conflict check is a tedious responsibility for support staff at law firms. I very briefly worked at a law firm after already being a public defender, and the staff asked me for the names of the hundreds of defendants I represented so they could check for conflicts (and if there are any, basically have me quarantined from those cases). I was lucky that I had kept a spreadsheet but I don't know how normal people would have dealt with that.
Do you think Baker had a waiver in writing from Elon Musk?
You used to work for the ACLU, right? Imagine you had inserted yourself into a controversial ACLU case that blew up, during which a coworker was caught forging documents submitted to court. Years later, you go to work for a different client with some tangential relations with the ACLU, and the aggrieved party in the controversial case. A new case comes up in the new company that has implications for the ACLU, and directly involves people who were directly involved in that previous controversial case.
Would you, as a lawyer, be comfortable sliding yourself into a "vetting" position for the new case? If you were, would you really be surprised if many other people were unwilling to give you a blank benefit of the doubt?
I worry I lost the analogy here, but the core question is, isn't CoI about the appearance of possible impropriety? I seems crazy that we would need direct, actionable evidence of malfeasance to allege a conflict of interest. Was Baker the only general counsel for Twitter?
I really don't know how companies deal with conflict checks but before Musk the entity that would need the waiver would be the "company" as represented by its governing body. I don't know if the company switching ownership requires Baker to proactively get a new waiver, or whether it's assumed that it's Musk's responsibility to check at that point. His previous work as FBI's general counsel was not exactly a secret.
Absolutely not, and I'd agree it's reasonable for people to be suspicious of me. I would be shocked if Baker was the only general counsel available to do this work, because "doc review" is extremely tedious work reserved as the lowest level of hell for attorneys. My assumption (depending on how big the volume of files is) would be they had a team of review attorneys do a first pass review of the disclosures and only after that was done did upper legal management step in for a spot check.
I keep wondering why my position is apparently so inscrutable to people because I never said that conflict of interest doesn't exist. I already said above "I think it's plausible that Jim Baker would at least have a strong motive to conceal things that would impugn the FBI which is his previous employer, but motive is not the same thing as commission." I think the pushback I'm getting on this issue is maybe that "I don't have enough evidence to believe Baker was acting in bad faith" is being interpreted as having a silent "therefore, he acted in good faith" follow-up.
For myself, I'm essentially taking the conflict of interest as a strong signal of probable bad faith, as in, a good faith counsel would have noticed the conflict, and assigned the task to someone else. Baker obviously did not, and that's the sort of thing that seems like it should need a very good justification, which inclines me to believing Musk (because the world of bad justifications is much larger than the world of good ones). And frankly, I'm pretty used to unconvincing, bored, boiler-plate denials from spooks, who often seem to kind of suck at advanced lying.
And generally, the context of Musk's takeover really seems like the sort of thing where Jim Baker in particular ought to have gotten a new waiver about this topic in particular. OTOH, it's not unreasonable to ask why Musk didn't think of this angle beforehand. On the gripping hand, Musk is doing a ton of shit, it's understandable if he drops a ball occasionally.
That's fine but there's a lot of gaps here papered over by assumptions. Do we know that any files were withheld? If files were withheld, do we know it was because of Baker's FBI connection? We don't know the answer to either question and Musk can trivially clear up both, but he hasn't. Don't you find the lack of detail from Musk to be suspicious? His actions do not comport with someone heralding himself as a vanguard for transparency.
Not particularly, he seems to be slow-rolling this whole thing. And my point was that I think Baker needs to do a lot to justify himself even in the event that he did literally nothing wrong, due to the conflict of interest. I would say that Baker could offer some transparency on his end too, if he really had a good reason to insert himself into the vetting anyway, but I guess there is probably a lot of potential problems for him there as a lawyer.
General but relevant question, does confidentiality cover the reasons your client fired you?
Generally yes. RPC 1.6 is what governs here and the only exception to confidentiality that comes close to what you're describe is:
The comments on the rule (#10) seem to imply that the complaint from the client needs to be at least somewhat formalized through a proceeding of some sort. So while the "controversy" language seems a bit permissive, there's also the strong professional incentive to not be known as the lawyer that will sing a song about his client every time he's fired.
I have to deal with this all the time because it's common for unhappy public defense clients to try and get their lawyers fired. Generally the song and dance I have to do is make vague allusions that there has been a "complete breakdown in the attorney-client privilege". In some rare circumstances, judges have asked for more detail, and so to cover my ass I ask them the judge to sign a court order forcing me to disclose confidential information (crucially, I have the right to disobey this order if I wanted to). I then submit a sealed declaration that only the judge will read with a lot more details, but even in those circumstances I try not to get too carried away.
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Ok, we can play the game your way:
There is literally more evidence for fraud in the 2020 election, than there is for Baker acting in good faith regarding the disclosure of the Twitter Files, so why are you demanding people skeptical of Baker provide the evidence rather than the other way around?
My position on whether Baker acted in good/bad faith is "I don't know." I don't know the guy, I don't know how he reviewed the Twitter files, I don't know if he withheld anything improper, I don't know why he was fired, I don't know what explanations he gave Musk that were so unconvincing, and so forth. No one is obligated to give me evidence but if you want to sway me to one side or another, I need something stronger than "Elon Musk said so and we should take him at his word despite the absence of corroborating evidence he could trivially provide." So, until something else happens, I'll stay in the IDK camp.
Right, you're promoting a position of pure agnosticism, which is why you also demanded evidence for Baker acting in good faith, right?
I don't think I encountered anyone asserting that Baker acted in good faith. If someone made that claim then yes I would demand to see evidence. If they don't provide evidence I have no reason to believe their claim.
Hm, I think there is insufficient evidence to conclude that this is the reason why you never demanded evidence of the other side.
Who is the "other side" here? You're right that I didn't email Baker and ask him if he was up to some bullshit, but I also would not expect him to either answer me or answer me honestly. The side that I am on remains "I don't have enough evidence to believe Musk at his word" and I haven't heard any explanations for why you think I'm overly skeptical.
You're being overly skeptical, because the chances for a random people from this sub being able to get the evidence you're asking for are basically nil. In fact, of everyone here, it's probably the easiest for you to get the evidence you're asking for, since your bosses have a direct line to Bari Weiss who's "jaw hit the floor" upon finding out Baker inserted himself into the process.
As for who's the other side, let me just say, there is no evidence for you being neutral in this matter.
The obvious solution to not having evidence to support a position is to not hold the position. It's ok to say "I don't know" and that seems to upset a lot of people who really want to adopt their preferred conclusion, lack of evidence be damned. Along that line, I don't know what me being purportedly "neutral" has to do with anything, I've never spoken to Weiss or Singal about any of this and don't intend to. The reasons for why I'm skeptical of Musk's claim stand on their own, and you're still welcome to poke holes in what I said even if you haven't tried to already.
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