Orin Kerr, at Volokh, explores the possibility that career DOJ lawyers working on the tobacco industry RICO case are the ones leaking information to the New York Times. The story is being framed as a case where politically appointed DOJ lawyers swooped in and saved the industry by reducing the damages being sought from $130 billion to $10 billion. That's certainly plausible. The article also contains all the hallmarks of the trial lawyers being furious over losing control of their case after years of hard work. Kerr is right that this story is only getting started. We reported earlier that Ralph Nader has filed formal ethics charges on the matter. No doubt many reporters are on the story.
The reasoning proffered by the DOJ for reducing the amount sought seems a little suspect to me. If there's a new appellate opinion that absolutely bars the higher number, you'd go with the lower number. But if the new opinion may limit damages, you could present the damages in a separable amounts, note the distinction raised by the appellate argument, and put both kinds of damages out there for the judge. That way, if the appellate decision really is limiting, you'd still hold onto what you deserved, and if the appellate decision were not limiting, then you'd get the big number.
There are two major ethics issues at work. First, did political influence interfere with the merits of the case? That's what the DOJ's Office of Professional Responsibility has been asked to review. Congress and the press will be investigating as well. Second, there is the leak. To analyze the disclosure under the ethics rules, we'd need to make a choice of law. The DOJ has some internal guidelines and the local rule of the presiding federal court probably adopts the ethics code of the local jurisdiction (DC?). Here's the ABA Model Rule on confidentiality, which has no exception that appears to permit any of the DOJ lawyers to be leaking. It might be argued that the exception under (b)(1) applies, because smoking causes deaths, but I don't think that reduced penalties are a "reasonably certain" cause of death.
a) 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 or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;
(4) to secure legal advice about the lawyer's compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or
(6) to comply with other law or a court order.