Updated at 3:00 p.m. PST with additional legal ethics expert opinion.
FTC Chairman Deborah Platt Majoras said Friday that she will not recuse herself from hearing the Google-DoubleClick merger case, arguing that the fact her husband's law firm is representing DoubleClick doesn't merit her recusal.
In a statement posted Friday to the FTC's Web site, Majoras said that her husband's law firm, Jones Day, is not representing DoubleClick before the FTC and noted that her husband is no longer an equity partner in the firm, meaning that his pay will in no way be determined by the outcome of the case.
"My husband does not represent any party in the Google-DoubleClick matter," Majoras said. "He is in no way connected to the matter, nor are any of the parties to the matter otherwise currently his clients."
Opponents of the merger have called on Majoras to recuse herself due to the potential conflict. The controversy grew after CNET News.com noted that Jones Day's Web site stated that the firm was representing DoubleClick in conjunction with the merger.
"Jones Day is advising DoubleClick Inc., the digital marketing technology provider, on the international and U.S. antitrust and competition law aspects of its planned $3.1 billion acquisition by Google Inc." However, following the News.com posting, the page was taken down from Jones Day's site. A Jones Day partner told News.com that its language was confusing and said the page was taken down so it could be rewritten. As of Friday afternoon it was still down.
Also on Friday, Commissioner William Kovacic said he would not recuse himself in the matter, while noting that his wife is also a non-equity partner at Jones Day.
"As of January 1, 2006, my wife, Kathryn Fenton, converted to a nonequity status at the law firm of Jones Day and became a fixed participation partner in that firm," Kovacic said. "As a fixed participation partner, her compensation will not be increased or affected by changes in the firm's income."
The three other commissioners issued a statement Friday saying they concurred with their colleagues' decision.
"We agree with the analyses in Chairman Majoras's and Commissioner Kovacic's responses, and see no legal grounds that would disqualify them from participating in the investigation of the Google-DoubleClick transaction," they said in a statement. "It is evident that these Commissioners have at all times taken affirmative steps to conduct themselves in complete conformity with the ethical standards that apply to their positions."
The Electronic Privacy Information Center (EPIC) and the Center for Digital Democracy filed a Freedom of Information Act Request on Friday seeking all FTC documents concerning Jones Day and the Google-DoubleClick matter, as well as documents related to Jones Day and consumer privacy complaints or enforcement.
DoubleClick says the firm of Simpson, Thacher & Bartlett LLP is representing them before the FTC, and in Europe, Jones Day and the Hengeler law firm are advising them in the matter.
Marc Rotenberg, executive director of EPIC, was not satisfied with Chairman Majoras' statement. "She absolutely failed to make a convincing case for why recusal is not justified," he said.
Several legal ethics experts disagreed.
"The mere fact we have a lawyer who is the chair of the FTC and her husband is an attorney with Jones Day, if that were the salient fact, that would not be sufficient to require her to recuse herself in this matter," said Mark Tuft, a lawyer in the firm of Cooper, White & Cooper LLP who specializes in professional responsibility of lawyers.
However, recusal might be merited if she had been exposed to confidential information about DoubleClick while working at Jones Day, he said.
A mere appearance of impropriety isn't enough, particularly with the increasing number of married couples practicing law, said Diane Karpman, a legal ethics expert at Karpman & Associates.
"She's maintaining that she's not drinking directly from the same trough, but you and I as members of the public feel that it's a little too cozy," Karpman said. "More and more women are becoming lawyers in positions of power and we wouldn't want to unfairly restrict them."
Another legal ethics expert suggested that because of the importance of their roles, government officials should be held to higher standards, even if the law allows the action.
"The law is the floor, not the ceiling, so just because something is allowed by law doesn't make it necessarily the best thing to do," said Judy Nadler, senior fellow in government ethics at the Markkula Center for Applied Ethics at Santa Clara University and a former mayor of Santa Clara, Calif. "In this case, because the agency is one that the public depends on for important decisions and decisions that the public trusts will be made impartially, it is always best to air on the side of caution."
News.com's Elinor Mills contributed to this report.