I find myself in an awkward position in which my friend, Charleston Post & Courier reporter Glenn Smith, is investigating and writing about a colleague and former office mate, Citadel General Counsel, Mark C. Brandenburg. Glenn’s an outstanding reporter, investigating and breaking numerous important local stories that are too small to interest the national media. Charleston is lucky to have him. Recently he has relentlessly investigated and reported on former Citadel camp counselor, Louis “Skip” ReVille, who is accused of inappropriate sexual conduct with Citadel campers. As part of this story, Smith’s investigation has pursued information surrounding Brandenburg’s 2007 in-house investigation, which uncovered significant evidence that ReVille had engaged in sexual behaviors with campers, and the decision by the Citadel not to go public or to law enforcement with this information.
On November 30, 2011 the Post & Courier published a story by Smith, Citadel releases new emails in ReVille case. It describes Mark’s investigation and his knowledge, as of 2007, of ReVille’s likely wrongdoing. It questions the decision not to refer the matter to law enforcement or take further action to protect children from ReVille. While not laying the blame for not going public on Brandenburg, it doesn’t discuss the ethical limitations that might have prevented Brandenburg from taking such action. A reader unfamiliar with the South Carolina’s attorney ethics rules, called the Rules of Profession Conduct, might conclude that Brandenburg instigated this 2007 coverup. Both to support Brandenburg and to provide Smith insight into what might have taken place in 2007, I wrote to Glenn and posted on the Post & Courier’s website:
Glenn, I may be biased as both an attorney and a colleague of Mark’s but I think the attempts to paint Mark as a wrongdoer (if only by insinuation) is sad.
As the Citadel’s in-house counsel, it’s Mark’s job to protect the Citadel and work for its interests. The Citadel could have decided to go public in 2007 with its concerns regarding ReVille but that was not Mark’s decision to make. It was Mark’s job to investigate the facts, report the facts to his higher ups, advise his higher ups on their options and the possible ramifications, and then implement the option chosen by the Citadel (assuming that option wasn’t illegal). The only step in the process in which Mark could use moral judgments was in giving his advice to the Citadel. After that point, he needed to abide by [its] decision.
It is true that Mark could have quit if he didn’t like the Citadel’s initial decision to bury information it had developed about ReVille. However, even if he had quit, he had a duty of loyalty [to] what would then be a former client and he would have violated professional ethics in revealing what he knew. It is also high minded to believe that one should quit when one disagrees with the moral choices of one’s employer but most employees are unwilling to leave gainful employment merely because they disagree on occasion (however strongly) with their employer’s actions. Mark is very fond of the Citadel, which would have made it even more difficult to leave merely because he disagreed (assuming he disagreed) with the Citadel’s actions. When the Post & Courier does things you disagree with, is the only honorable action to quit?
The Citadel board, and not Mark, ultimately made the decision not to go to the police. That was a shameful decision in 2007. It is another shameful decision that the board seems intent on laying the blame for this debacle on its attorney.
Numerous comments to my comment indicate that the public doesn’t understand the duties an attorney has to follow the client’s directives and to keep secret information that the attorney learns from the client or while working on the client’s behalf. The Rules of Profession Conduct, set forth various rules germane to Mark’s situation. Under subsection a of Rule 1.6, Confidentiality of Information:
A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation…
Thus unless the Citadel authorized it, Brandenburg could not go public with information he learned about ReVille. He could not even go public with the Citadel’s apparent decision not to inform law enforcement or the public regarding the risks ReVille posed.
The comments to Rule 1.13, Organization as Client, provide further insight into Brandenburg’s obligations. Comment 2 notes:
When one of the constituents of an organizational client communicates with the organization’s lawyer in that person’s organizational capacity, the communication is protected by Rule 1.6. Thus, by way of example, if an organizational client requests its lawyer to investigate allegations of wrongdoing, interviews made in the course of that investigation between the lawyer and the client’s employees or other constituents are covered by Rule 1.6.
Comment 3 notes:
When constituents of the organization make decisions for it, the decisions ordinarily must be accepted by the lawyer even if their utility or prudence is doubtful. Decisions concerning policy and operations, including ones entailing serious risk, are not as such in the lawyer’s province.
Comment 4 notes:
In determining how to proceed under paragraph (b), the lawyer should give due consideration to the seriousness of the violation and its consequences, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters, and any other relevant considerations. Ordinarily, referral to a higher authority would be necessary. In some circumstances, however, it may be appropriate for the lawyer to ask the constituent to reconsider the matter; for example, if the circumstances involve a constituent’s innocent misunderstanding of law and subsequent acceptance of the lawyer’s advice, the lawyer may reasonably conclude that the best interest of the organization does not require that the matter be referred to higher authority. If a constituent persists in conduct contrary to the lawyer’s advice, it will be necessary for the lawyer to take steps to have the matter reviewed by a higher authority in the organization. If the matter is of sufficient seriousness and importance or urgency to the organization, referral to higher authority in the organization may be necessary even if the lawyer has not communicated with the constituent. Any measures taken should, to the extent practicable, minimize the risk of revealing information relating to the representation to persons outside the organization.
Taken together, these comments mean that Brandenburg was bound to keep information surrounding his investigation confidential unless the Citadel authorized its release. Further, should Mark have disagreed with the decision to keep this information private, his obligation was to take his concerns to higher authorities within the Citadel but, ultimately, he had to abide by the decision of the Citadel’s higher/highest authority.
Resigning from the Citadel would not have given Brandenburg the ability to reveal what he had learned. Rule 1.9, Duties to Former Clients, contains the following language in subsection c(2):
A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter reveal information relating to the representation except as these Rules would permit or require with respect to a client.
Today the Post & Courier published another Glenn Smith story regarding the ReVille investigation, Citadel case won’t end soon. In it, Smith writes:
The Citadel has released hundreds of pages of documents pertaining to the case, but so far, the written record of the complaint’s handling is limited to emails authored by Mark Brandenburg, the in-house attorney who interviewed the camper.
Brandenburg’s emails show that the school tried to dodge an outside criminal investigation and lawsuit by handling the matter out of the public eye.
The documents, however, provide very little information as to who at The Citadel directed Brandenburg’s hand in the case and authorized the steps he took.
The emails deal almost exclusively with communications Brandenburg had with third parties, such as former counselors at the camp and representatives from the state Insurance Reserve Fund, which footed the bill for his investigation and would likely pay out any settlement or judgment.
There is nothing to indicate his dealings with administrators, such as Citadel President John Rosa, or the 11-member Board of Visitors, composed entirely of Citadel graduates.
It remains unclear how much those officials knew, when they knew it or what role they played in the outcome. That’s important, because legal canons may have prevented Brandenburg from notifying police on his own, a breach of attorney- client privilege.
Those in charge, however, had no such restrictions.
Smith’s reporting leads me to conclude that there are two Citadel coverups regarding the ReVille investigation. The first, from 2007, is the coverup of information Brandenburg learned about ReVille’s work as a counselor at the Citadel’s camps. The second coverup is the Citadel’s current refusal to reveal the information showing which Citadel authorities decided in 2007 to not go public or to law enforcement with what it had learned about ReVille and how this decision was reached. In refusing to reveal this information, the Citadel keeps the focus on Brandenburg’s knowledge rather than on the organization’s decision not to reveal what Mark had learned. Given that Mark was ethically bound to abide by the Citadel’s decision on this issue I find the Citadel’s behavior dishonorable, as it allows the blame to be focused on him when his actions were either blameless (if he counseled the Citadel to go public or to law enforcement with what he’d learned) or part of a larger coverup.
The Citadel obviously has some control over which emails it releases. Why does it only provide emails regarding Mark’s dealings with outsiders? Why hasn’t it released emails showing the advice Mark gave to higher ups and the directions that Mark was given from these higher ups?
It’s quite possible that Mark was a supporter of the plan to cover up the abuse. If so, and if he is let go as a result, I won’t consider that to be an injustice. But obviously someone high up at the Citadel in 2011 is covering up why the higher ups in the Citadel in 2007 didn’t go public with what Mark learned. There are two cover ups the Post & Courier should be investigating.