Nussbaum Was Serving the Wrong Master : Whitewater: The White House counsel is not the President’s personal lawyer; he works for the government.

This week thousands of law students across the country will be taking a mandatory “professional responsibility” examination, which tests their knowledge of the laws, rules and ethical principles that govern the practice of law.

Someone should save a seat for recently deposed White House counsel Bernard W. Nussbaum, though he might have a serious problem passing the test. The former Wall Street corporate litigator appears to have forgotten at least one of the basics of legal ethics--loyalty to one’s client.

What? Didn’t Nussbaum do everything to zealously protect Bill Clinton’s position in the brewing Whitewater scandal? After all, he shielded documents, fought a special prosecutor and met with federal regulators. What more could he have done for Clinton?

The problem is that Clinton was not his client. Nussbaum’s client was the United States government, not the current resident of 1600 Pennsylvania Ave. The White House counsel is a public servant paid by the government, not by the President.

When it became clear to Nussbaum that any connection Clinton might have had to the case in Arkansas did not involve his duties as President, Nussbaum should have taken the steps necessary to separate himself from the President.

Granted, taking this step would not have been easy, considering the political realities and the years of friendship with the President. But the American Bar Assn. model rules of professional conduct make it very clear that a lawyer who represents a government agency, like a lawyer who represents a corporation, owes a duty to the agency, not to any one individual in the agency. Imagine the situation if Nussbaum were an attorney for a major corporation whose CEO had legal problems stemming from his previous job. You can bet the board of directors would not be pleased if their general counsel was spending his time on a matter unrelated to the CEO’s current job.

While it may be politically naive to think that this general rule covers the White House, there is no ethical reason to make an exception for the President.

Nussbaum should have counseled the President that it was in the government’s best interest to turn over all information related to Whitewater as quickly as possible. If the President refused, Nussbaum should have stepped aside and advised him to obtain independent counsel. If the President refused that advice and ordered Nussbaum to continue working on Whitewater, Nussbaum should have resigned.

This may have been what happened but I doubt it. Nussbaum believed and acted as every White House counsel before him has--as if the President was his client.

He was wrong. But that isn’t why he was asked by the President to take the sacrificial bullet. He was fired not because of his tactics but because they didn’t work.

This means that there still may be a serious problem in the White House. Either the President and his advisers do not understand what the proper role of White House counsel is, or, worse yet, they understand but don’t care.

Somebody in the government--the attorney general?--must have the political courage to make it clear to the President that the White House counsel can represent the interest of the President only when the President is acting in his official capacity. For any other legal advice or service, the President must do just what the rest of us have to do when we have a legal problem: Go out and hire a private attorney.