Friday, July 14, 2017

Bars And Politics

We recently reported on disciplinary charges filed in Ohio that involve allegations of verbal abuse of an employee.

Disciplinary Counsel Scott Drexel charged that the abuse

By the foregoing conduct, as well as other conduct of a similar nature, respondent violated the following provision of the Rules of Professional Conduct:

( a) By verbally insulting and harassing his employee on multiple occasions, respondent violated Prof. Cond. R. 8.4(h) [ engaging in any other conduct that  adversely reflects on the lawyer's fitness to practice law].

The recent controversy over emails sent by Marc Kasowitz has resulted in a bar complaint filed with the Departmental Disciplinary Counsel for the New York Appellate Division for the First Judicial Department.

There are also reports of bar complaints filed against Attorney General Sessions (Alabama) and Kellyanne Conway (District of Columbia). 

State Bars have been notoriously reticent in taking on cases with a political tint.

In the Bush II era, virtually nothing was done to the Department of Justice attorneys who used political considerations in hiring (a Virginia reprimand for Monica Goodling) , advocated for torture and engaged in other abuses of power.

Also noteworthy is the undeniable fact that then-D.C. Bar Counsel did not contest the reinstatement of three convicted felons who got their law licenses back after the minimum five years without a speck of public notice until a court order was entered.

The favored felons are I.Lewis Libby, David Savafian and Robert Coughlin. 

In D.C., the bar powers-that-were was much more interested in pursuing whistleblowers than any other form of potential misconduct by government actors.

The most energy went into the pursuit of Jesslyn Radack and Thomas Tamm as reported by Newsweek (and notes my personal interest in these matters)

A whistleblower who sparked intense public debate about warrantless surveillance nearly a decade before Edward Snowden now faces ethics charges that could result in his disbarment.

Thomas Tamm, a former Justice Department attorney, told reporters in 2004 about the Bush administration bypassing standard legal procedure for intercepting Americans’ international phone calls and emails, and publicly outed himself weeks before President Barack Obama took office.

Tamm’s tip helped New York Times reporters James Risen and Eric Lichtblau win a Pulitzer Prize in 2006. And under Obama, who had criticized the program, the Justice Department in 2011 announced it would not bring criminal charges against him.

But on Tuesday, the D.C. Office of Disciplinary Counsel – which prosecutes disciplinary matters involving members of the D.C. Bar – unveiled ethics charges against Tamm that could result in his disbarment.

The charges allege Tamm “failed to refer information in his possession that persons within the Department of Justice were violating their legal obligations to higher authority within the Department” and “revealed to a newspaper reporter confidences or secrets of his client, the Department of Justice.”

 The D.C. Office of Disciplinary Counsel began its investigation in 2009, but the charges weren’t filed until late December and were first reported by the National Law Journal on Tuesday.

Gene Shipp, who leads the attorney-prosecuting office as disciplinary counsel, declined to comment specifically on the Tamm case, but attributed the delay in filing charges to a redoubled attempt to clear a case backlog resulting from about 1,000 complaints a year, less than half of which are investigated.

 “Sometimes we stand down when other agencies are doing things, we don’t try to get in front of the federal government,” Shipp says. 

The matter now goes to a three-member hearing committee for appraisal and then a nine-member Board on Professional Responsibility, before possible evaluation by the District of Columbia’s court system.

Some cases take a few years, others longer.

“We’re very young in the process of this case," Shipp says. “God bless anybody who has to go through this system – it’s difficult. People spend a long time becoming a lawyer and then to face charges, it’s hard. But we have to protect the public, however long it takes.”

Georgetown University law professor Michael Frisch is representing Tamm, and he knows how long the process can take. Frisch previously represented hard-charging whistleblower attorney Jesselyn Radack, a former Justice Department ethics adviser who waited a decade to learn if the office would bring charges for her exposing details about the interrogation of “American Taliban” John Walker Lindh.

“It’s unfortunate and it’s not unusual – the kind of delays the record reflect here are becoming fairly common in the D.C. Bar disciplinary system,” Frisch says. “You see a lot of cases where the investigative period takes years and then the process itself takes years once the charges are filed.”

Frisch says it’s possible the Board on Professional Responsibility will short-circuit the case by recommending no action against Tamm before it reaches court. The Office of Disciplinary Counsel would have to choose not to appeal for that to happen – but Shipp says changing his mind isn’t impossible.

“A lot of the damage of these cases is the strain and pressure of having to endure the process and the charges,” Frisch says.

 It’s unclear if possible disciplinary action within the District of Columbia would affect Tamm’s ability to practice law in Maryland, where he currently works as a public defender.
 Frisch says he has “no comment” on whether political motives may be in play, but Radack says she believes political persecution is at hand.

“I’ve known Tom Tamm for many years and he is one of the most ethical attorneys I know,” she says. “I believe the bar charges against him are politicized retaliation. The fact that they are bringing them more than 10 years after his revelations diminish any [inkling] of legitimacy because of stale evidence and eroded memories due to the passage of time.”

“Like in my case, I suspect that some of the witnesses against Tamm have passed away,” she says. “This has nothing to do with justice and everything to do with politics, retaliation and punishment – as do so many of the government’s actions designed to ruin whistleblowers’ careers.”

In her own case, Radack says, the possibility of bar charges “were a Sword of Damocles over my head.”

The Tamm case ended with a consented-to public censure to bring an end  to an  "investigation" initiated in 2009

(Mike Frisch)

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