Ethics

Here's an increasingly common problem: a two-career couple raises conflict of interest questions.  The FTC Commission Chair, Deborah Platt Majoras, has denied requests to recuse herself from ruling on the proposed merger of Google and Double-click.  Majoras's statement is here.  A news article on the issue is here.

According to Majoras's statement, her husband is a non-equity partner at Jones Day, where other lawyers are handling a related aspect of the merger proposal in Europe for Double-click.  Simpson Thacher is representing Double-click on the matter before the FTC.  Her husband is not working on any matters for any of the parties appearing before the FTC, and he's no longer an equity partner.  I don't have the government regs in front of me, so I can't comment on whether recusal is required.  But here are some thoughts:

• If this represents a mandatory recusal, it's hard to be a high-powered, two-career couple with one person in government law and one in biglaw.
• According to Majoras's statement, she formerly recused herself from Jones Day matters because her husband was an equity partner, but now she doesn't always need to recuse herself in those situations, because her husband became a non-equity ("fixed participation") partner.  If Majoras is legally correct, I assume that we will see that strategy adopted more often.  But note that fixed participation partners can still earn partner-like salaries, and that the salaries could vary year by year.  And it may be common that the biglaw spouse (or SO) bounces back to full equity status once her/his spouse finishes the government stint.  In other words, depending on the facts the strategy might be viewed as form over substance.
• The matter is a reminder that, to paraphrase Ron Rotunda, just because ethics are good things it doesn't mean that more ethics rules are always good things.  (Or, as I say, "sometimes 'ethics' is just a brick they throw at you.")  Ethics rules get used as strategic weapons by people with private agendas.  We need to find a golden mean: enough conflict regulations to protect the process and public confidence in the process, but not so many that we strangle the process.  Conflicts rules must be rules of reason and not rules of empty formalism.