A Gorelick Essay

As mentioned below, Duke civil attorney Jamie Gorelick is presenting today at the NACUA conference, held in Manhattan’s Marriot Marquis hotel. Her topic: “The Best Defense: Navigating Complex Criminal Matters on Your Campus.”

An essay prepared by Gorelick and Christopher Zimmermann provides background for her talk. Much of the article deals with matters extraneous to the Duke civil case—notably how university counsel (or outside lawyers hired by the university) should behave when dealing with alleged criminal conduct by university employees, or when handling internal investigations of alleged improprieties. Three Gorelick passages, however, stand out, in light either of Duke’s conduct or of Gorelick’s own recent filings.

Gorelick and Zimmermann write,

During execution of a search warrant or otherwise, government agents may attempt to speak with employees or students. It will often be the case that the organization has no reason to suspect such inquiries, but if a college or university does anticipate government contact, relevant employees should be advised how to respond. In any conversation with the government, employees should tell the truth. However, employees should be advised that they are not required to speak with government agents and have the right to consult with an attorney before consenting to any interview.

The Gorelick essay doesn’t spell out how a university should respond when “government agents may attempt to speak with . . . students,” but it would be hard to argue that Duke administrators—at least one of whom urged the players not to tell their parents about the case, and who were involved in organizing a mass interrogation of the players without counsel—lived up to the spirit of Gorelick’s guidelines.

Moreover, at least by the time of the nighttime Durham Police visit to the Duke dorms (mid-April 2006), Duke had good “reason to suspect such inquiries.” Yet the University appears to have made no protest about Durham Police officers surreptitiously gaining entrance to a Duke dorm and trying to interrogate Duke students outside the presence of their counsel.

Some of the victims of these policy failures are the plaintiffs in both the Cooper and the Ekstrand lawsuits.

Gorelick and Zimmermann write,

Counsel may represent both the organization and its employees personally when their interests are aligned. However, . . . there may be situations in which the interests of the college and university itself and those of its employees diverge, such as a decision on the part of the organization to divulge privileged information regarding an employee to an investigative agency. An organization should consider whether and when a dual or multiple representation is appropriate.

Duke’s handling of the civil case doesn’t seem to reflect this guidance. To take the most glaring example, unless the motion to dismiss is granted, “the interests of the college and university” and the interests of former SANE-nurse-in-training Tara Levicy would seem directly in conflict—yet Gorelick represents them both.

It is in Levicy’s best interest to maintain that she consulted regularly with her superiors, and that her “change-her-story-to-fit-Nifong’s-new-theory” approach to the case had her superiors’ blessing. It is in the university’s interest to portray Levicy as a rogue employee, whose initial involvement in the case might have been an honest error, but who was subsequently reined in, only to continue trying to bolster Nifong’s case secretly, outside established university channels.

Gorelick and Zimmermann write,

If the witness is an employee of the college or university, he or she may have a duty to cooperate set forth in employee handbooks and policies pursuant to which the organization has the right to demand cooperation . . . Refusal to cooperate with the investigation, including maintaining its confidentiality, may amount to a breach of loyalty and become grounds for termination. [emphasis added]

In her recent filing, however, Gorelick outlined a radically different conception of the power of “employee handbooks and policies pursuant to which the organization has the right to demand cooperation.” According to Gorelick’s motion to dismiss, employee handbooks (like the Duke faculty handbook) or “policies pursuant to which the organization has the right to demand cooperation” (like Duke’s anti-harassment policies) are little more than scraps of paper. The university has no obligation to enforce them; professors and students can, apparently, violate them at will.

Up until the lacrosse case, Duke’s approach to enforcement of “employee handbooks and policies pursuant to which the organization has the right to demand cooperation” corresponded more to Gorelick’s position in her essay than in Gorelick’s position in her motion to dismiss.

This record, of course, raises the obvious question: how can a Duke student (or a Duke parent) know when the University will choose to enforce its “employee handbooks and policies pursuant to which the organization has the right to demand cooperation”—if, on the one hand, a violation of these policies could “amount to a breach of loyalty and become grounds for termination,” but on the other hand, violations of these policies might be ignored, on the grounds that the University has no legal obligation to enforce its own policies?

Gorelick offers no answer. Had she done so, she might have provided the obvious response to this obvious question: the university will enforce its “employee handbooks and policies pursuant to which the organization has the right to demand cooperation,” except when doing so will arouse the wrath of the politically correct on campus. In such cases, the university will not obstruct advocates of the dominant race/class/gender faction.