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Quis custodiet ipsos custodes? Conflict of interest in Troubled Waters Investigation


Who will guard the guardians?

A good question to consider now. Is it not a conflict of interest, when the General Counsel describes himself as the lawyer of the president and the provost to have Mr. Rotenberg involved in an investigation of the administration's censorship of Troubled Waters?

Based on what follows, I think so.

Academic Freedom and Tenure Committee Friday, October 22, 2010
"Mr. Rotenberg said he is the lawyer; his clients, the President and the Provost, have already answered the question"

"She [Professor Elliot] also noted that the President, at the FCC meeting the preceding day, had said that the default for decision-making must be to forward the issue to the Provost
if there is a question about academic freedom. Her question now, to which she invites Mr. Rotenberg to respond in the future, is what, in existing policies and procedures, did not happen? What flaw is there in policies and procedures that caused the problem? The Committee would like to work with him on answering that question. Mr. Rotenberg said that he would review the questions from FCC and that he and the Provost would do whatever they can to deal with them and will follow the Committee's guidance on what it needs."

As one of my friends put it:

If the clients of the general counsel are the president and the provost, then a conflict of interest prevents the general counsel from conducting an independent investigation and from advising any other groups, such as the Academic Freedom & Tenure Committee or the Faculty Consultative Committee.


Rule 1.7 (a) of the Minnesota Rules of Professional Conduct (formerly known as the Canons of Ethics).

"Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.

A concurrent conflict of interest exists if:

(1) the representation of one client [president and provost] will be directly adverse to another client [the University]; or

(2) there is a significant risk that the representation of one or more clients [the University] will be materially limited by the lawyer's responsibilities to another client [president and provost], a former client or a third person, or by a personal interest of the lawyer [a general counsel who may serve at the pleasure of the president].

Rule 1.8 (b) of the Minnesota Rules of Professional Conduct

"A lawyer shall not use information relating to representation of a client [president and provost] to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these rules."

Rule 1.13(f) of the Minnesota Rules of Professional Conduct

"A lawyer representing an organization [the University] 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 [president and provost], or by the shareholders."

Are the administrators and the members of the faculty blind to this conflict of interest and the ethical obligations of the general counsel?

An outside, independent, investigation of this matter is called for. A suggested mechanism has been given in Community Voices on the Star-Tribune website:

A Call for an Independent Investigation of Troubled Waters at the University of Minnesota

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