Alberto Gonzales


This morning, Attorney General Alberto Gonzales announced that he will leave the Department of Justice, after two and a half years of service to the department. Al Gonzales is a man of integrity, decency and principle. And I have reluctantly accepted his resignation, with great appreciation for the service that he has provided for our country. * * * After months of unfair treatment that has created a harmful distraction at the Justice Department, Judge Gonzales decided to resign his position, and I accept his decision. It’s sad that we live in a time when a talented and honorable person like Alberto Gonzales is impeded from doing important work because his good name was dragged through the mud for political reasons.

President George W. Bush, August 27, 2007

Personal Information:

Name: Gonzales, Alberto
Bar: Texas
ID No: No. 8118550
Status: Active

Grievance Information: Texas

Bar Home Page: State Bar of Texas
Main Grievance Page: Texas Client Assistance & Grievance
Ethics Rules: Texas Procedural and Conduct Rules
Complaint Form: Office of the Chief Disciplinary Counsel Grievance Form (.pdf)
Attorney Search: Texas Member Directory

Allegations:

Knowing Attempt to Coerce Execution of Legal Document by Incompetent Person

On March 4, 2004, then-Attorney General John Ashcroft was stricken with pancreatitis for which he underwent gall bladder surgery. Prior to being admitted to the hospital, Ashcroft executed a formal document transferring the powers and responsibilities of the office of Attorney General to his Deputy Attorney General James Comey. This transfer of power was communicated to the White House. Knowing specifically that Ashcroft had both transferred power to Comey and had also not reclaimed his position, Alberto Gonzales, then-White House Counsel, visited the hospital intensive care bedside of Ashcroft on March 10, 2004 in an attempt to pressure Ashcroft to execute a legal document as the Attorney General. Ashcroft, who was barely conscious at the time, refused. Testifying to the Senate Judiciary Committee, acting-Attorney General James Comey stated that

I was concerned that, given how ill I knew the attorney general was, that there might be an effort to ask him to overrule me when he was in no condition to do that.

Comey further testified that, after witnessing Gonzales’ visit, that

I was angry. I thought I had just witnessed an effort to take advantage of a very sick man who did not have the powers of the attorney general.

An excerpt of Comey’s testimony to the Senate Judiciary Committee on May 15, 2007, further explains the improper conduct of Gonzales:

COMEY: We had — yes. We had concerns as to our ability to certify its legality, which was our obligation for the program to be renewed.

The attorney general was taken that very afternoon [March 4, 2007] to George Washington Hospital, where he went into intensive care and remained there for over a week. And I became the acting attorney general.

And over the next week — particularly the following week, on Tuesday — we communicated to the relevant parties at the White House and elsewhere our decision that as acting attorney general I would not certify the program as to its legality and explained our reasoning in detail, which I will not go into here. Nor am I confirming it’s any particular program. That was Tuesday that we communicated that.

The next day was Wednesday, March the 10th, the night of the hospital incident. And I was headed home at about 8 o’clock that evening, my security detail was driving me. And I remember exactly where I was — on Constitution Avenue — and got a call from Attorney General Ashcroft’s chief of staff telling me that he had gotten a call…

SCHUMER: What’s his name?

COMEY: David Ayers. That he had gotten a call from Mrs. Ashcroft from the hospital. She had banned all visitors and all phone calls. So I hadn’t seen him or talked to him because he was very ill. And Mrs. Ashcroft reported that a call had come through, and that as a result of that call Mr. Card and Mr. Gonzales were on their way to the hospital to see Mr. Ashcroft.

SCHUMER: Do you have any idea who that call was from?

COMEY: I have some recollection that the call was from the president himself, but I don’t know that for sure. It came from the White House. And it came through and the call was taken in the hospital.

So I hung up the phone, immediately called my chief of staff, told him to get as many of my people as possible to the hospital immediately. I hung up, called Director Mueller and — with whom I’d been discussing this particular matter and had been a great help to me over that week — and told him what was happening. He said, “I’ll meet you at the hospital right now.”

Told my security detail that I needed to get to George Washington Hospital immediately. They turned on the emergency equipment and drove very quickly to the hospital. I got out of the car and ran up — literally ran up the stairs with my security detail.

SCHUMER: What was your concern? You were in obviously a huge hurry.

COMEY: I was concerned that, given how ill I knew the attorney general was, that there might be an effort to ask him to overrule me when he was in no condition to do that.

SCHUMER: Right, OK.

COMEY: I was worried about him, frankly. And so I raced to the hospital room, entered. And Mrs. Ashcroft was standing by the hospital bed, Mr. Ashcroft was lying down in the bed, the room was darkened. And I immediately began speaking to him, trying to orient him as to time and place, and try to see if he could focus on what was happening, and it wasn’t clear to me that he could. He seemed pretty bad off.

SCHUMER: At that point it was you, Mrs. Ashcroft and the attorney general and maybe medical personnel in the room. No other Justice Department or government officials.

COMEY: Just the three of us at that point. I tried to see if I could help him get oriented. As I said, it wasn’t clear that I had succeeded.

I went out in the hallway. Spoke to Director Mueller by phone. He was on his way. I handed the phone to the head of the security detail and Director Mueller instructed the FBI agents present not to allow me to be removed from the room under any circumstances. And I went back in the room.

I was shortly joined by the head of the Office of Legal Counsel assistant attorney general, Jack Goldsmith, and a senior staffer of mine who had worked on this matter, an associate deputy attorney general. So the three of us Justice Department people went in the room. I sat down…

SCHUMER: Just give us the names of the two other people.

COMEY: Jack Goldsmith, who was the assistant attorney general, and Patrick Philbin, who was associate deputy attorney general.

I sat down in an armchair by the head of the attorney general’s bed. The two other Justice Department people stood behind me. And Mrs. Ashcroft stood by the bed holding her husband’s arm. And we waited.

And it was only a matter of minutes that the door opened and in walked Mr. Gonzales, carrying an envelope, and Mr. Card. They came over and stood by the bed. They greeted the attorney general very briefly. And then Mr. Gonzales began to discuss why they were there — to seek his approval for a matter, and explained what the matter was — which I will not do.

And Attorney General Ashcroft then stunned me. He lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me — drawn from the hour-long meeting we’d had a week earlier — and in very strong terms expressed himself, and then laid his head back down on the pillow, seemed spent, and said to them, “But that doesn’t matter, because I’m not the attorney general.”

SCHUMER: But he expressed his reluctance or he would not sign the statement that they — give the authorization that they had asked, is that right?

COMEY: Yes. And as he laid back down, he said, “But that doesn’t matter, because I’m not the attorney general. There is the attorney general,” and he pointed to me, and I was just to his left. The two men did not acknowledge me. They turned and walked from the room. And within just a few moments after that, Director Mueller arrived. I told him quickly what had happened. He had a brief — a memorable brief exchange with the attorney general and then we went outside in the hallway.

SCHUMER: OK. Now, just a few more points on that meeting. First, am I correct that it was Mr. Gonzales who did just about all of the talking, Mr. Card said very little?

COMEY: Yes, sir.

SCHUMER: OK. And they made it clear that there was in this envelope an authorization that they hoped Mr. Ashcroft — Attorney General Ashcroft would sign.

COMEY: In substance. I don’t know exactly the words, but it was clear that’s what the envelope was.

SCHUMER: And the attorney general was — what was his condition? I mean, he had — as I understand it, he had pancreatitis. He was very, very ill; in critical condition, in fact.

COMEY: He was very ill. I don’t know how the doctors graded his condition. This was — this would have been his sixth day in intensive care. And as I said, I was shocked when I walked in the room and very concerned as I tried to get him to focus.

SCHUMER: Right. OK. Let’s continue. What happened after Mr. Gonzales and Card left? Did you have any contact with them in the next little while?

COMEY: While I was talking to Director Mueller, an agent came up to us and said that I had an urgent call in the command center, which was right next door. They had Attorney General Ashcroft in a hallway by himself and there was an empty room next door that was the command center. And he said it was Mr. Card wanting to speak to me.

I took the call. And Mr. Card was very upset and demanded that I come to the White House immediately. I responded that, after the conduct I had just witnessed, I would not meet with him without a witness present.

He replied, “What conduct? We were just there to wish him well.”

And I said again, “After what I just witnessed, I will not meet with you without a witness. And I intend that witness to be the solicitor general of the United States.”

SCHUMER: Let me ask you this: So in sum, it was your belief that Mr. Gonzales and Mr. Card were trying to take advantage of an ill and maybe disoriented man to try and get him to do something that many, at least in the Justice Department, thought was against the law? Was that a correct summation?

COMEY: I was concerned that this was an effort to do an end-run around the acting attorney general and to get a very sick man to approve something that the Department of Justice had already concluded — the department as a whole — was unable to be certified as to its legality. And that was my concern.

(Emphasis added.)

Robert S. Mueller, Director of the FBI, arrived at Ashcroft’s hospital room moments after Gonzalez left. In notes memorializing his observations of Ashcroft, Mueller described Ashcroft as “feeble, barely articulate, clearly stressed.”

Mr. Ashcroft himself confirms Mr. Comey’s observation that Mr. Ashcroft was ‘a very sick man’ and Mr. Mueller’s observation that Mr. Ashcroft was ‘feeble, barely articulate, clearly stressed.’ In Never Again – Securing America and Restoring Justice, former Attorney General John Ashcroft described his stay in the hospital and the subsequent period of recuperation in this manner (emphasis supplied):

They tubed me up with intravenous lines so they could shut down my pancreas and digestive system. … I felt weak and emaciated, but my doctors assured me that when they got me patched up, [i.e., removed his gall bladder,] over time, I’d be close to good as new.

The doctors kept me in intensive care, lying on my back for almost ten full days, pumping me full of antibiotics and morphine. They then sent me home, where I needed another three (3) weeks to recuperate. Following my bout with acute pancreatitus and the necessary surgery, I returned to work in the early spring of 2004. I had relinquished my official responsibilities as attorney general during my stay in the hospital and through the recuperation. I was in no position to exercise judgment or to make decisions on behalf of the United States Government.

John Ashcroft, Never Again – Securing America and Restoring Justice, p.235.

Clearly, Mr. Comey’s statement that he was concerned that Mr. Gonzales was trying ‘to do an end-run around the acting attorney general and to get a very sick man to approve something that the Department of Justice had already concluded — the department as a whole — was unable to be certified as to its legality’ is supported by the facts. Mr. Gonzales’ explanation, however, does not.

In explaining his conduct, Gonzales testified to the Senate Judiciary Committee on July 24, 2007 that he went to the Ashcroft’s hospital at the behest of the “Gang of Eight” bipartisan congressional leaders who, according to Gonzales, had demanded that the program continue. Former Senator Tom Daschle, a member of the Gang of Eight, however, states that:

I have no recollection of such a meeting and believe that it didn’t occur. I am quite certain that at no time did we encourage the AG or anyone else to take such actions. This appears to be another attempt to rewrite history just as they have attempted to do with the war resolution.

Additionally, Gonzales’ testimony was further contradicted by other members of the Gang of Eight:

Rep. Nancy Pelosi (Calif.) and Sen. John D. Rockefeller IV (W.Va.), who were briefed on the program at the time, said there was no consensus that it should proceed. Three others who were at the meeting also said the legal underpinnings of the program were never discussed.

“He once again is making something up to protect himself,” Rockefeller said of the embattled attorney general.

Ashcroft undergoes successful gall bladder removal, doctor says, USA Today, March 9, 2004

White House pressed Ashcroft on wiretaps , USA Today, May 15, 2007

Gonzales slammed for visiting hospitalized Ashcroft on wiretapping, USA Today, May 15, 2007

Transcript of testimony of Deputy Attorney General James Comey to Senate Judiciary Committee , Salon.com, May 15, 2007

In sickbed showdown, principle trumps power , USA Today, May 16, 2007

Senators renew call for Gonzales’ resignation, USA Today, May 16, 2007

Leahy asks Gonzales to clarify testimony, USA Today, July 18, 2007

Attorney General faces new questions, USA Today, July 19, 2007

Daschle: Gonzales Trying to “Rewrite History” by Blaming Congress for Ashcroft Spying Crisis, TPMMuckraker, July 24, 2007

Pelosi: I Objected to Spying When Comey Did, TPMMuckraker, July 24, 2007

Gonzales, Senators Spar on Credibility, Dan Eggen and Paul Kane. July 25, 2007

FBI chief’s notes detail Ashcroft visit, USA Today, August 16, 2007

Special Gonzales Top 10 (video), Talking Points Memo, August 28, 2007

Rules Violated:

  1. Rule 3.04 Fairness in Adjudicatory Proceedings
  2. Rule 3.05 Maintaining Impartiality of Tribunal
  3. Rule 3.10 Advocate in Nonadjudicative Proceedings
  4. Rule 8.04 Misconduct

False Statement to Congress

In testimony before the Senate Judiciary Committee on February 6, 2007, Gonzales testified about a White House Situation Room briefing to inform congressional leaders about the pending expiration of and DoJ objections to an unidentified program. Then-Deputy Attorney General Jim Comey led the objections and questioned the program’s legality. Specifically, Gonzales stated that:

The dissent related to other intelligence activities. The dissent was not about the terrorist surveillance program. … It was not [about a program called the Terror Surveillance Program]. It was about other intelligence activities.

According to the Washington Post,

Gonzales, testifying for the first time in February 2006 about the Terrorist Surveillance Program, which involved eavesdropping on phone calls between the United States and places overseas, told two congressional committees that the program had not provoked serious disagreement involving Comey or others. “None of the reservations dealt with the program that we are talking about today,” Gonzales said then. No Dissent on Spying, Says Justice Dept. , Washington Post, R. Jeffrey Smith, May 17, 2007

The New York Times adds that

Mr. Gonzales insisted before the Senate this week that the 2004 dispute did not involve the Terrorist Surveillance Program “confirmed” by President Bush, who has acknowledged eavesdropping without warrants but has never acknowledged the data mining. Mining of Data Prompted Fight Over U.S. Spying , New York Times, Scott Shange and David Johnston, July 29, 2007

However, a May 17, 2006 memo from then-Director of National Intelligence John Negroponte addressed to then-House Speaker Dennis Hastert confirms that the briefing on March 10, 2004, was indeed about the TSP and detailed “the classification of the dates, locations, and names of members of Congress who attended briefings on the Terrorist Surveillance Program[.]” As noted by reporter Spencer Ackerman,

As the world knows, Gonzales testified on Tuesday that James Comey, the former deputy attorney general, may have had legal objections to … to… well, to some “intelligence activities” by the Bush administration, but not to the surveillance program announced by President Bush in December 2005, known as the Terrorist Surveillance Program. Stunned lawmakers immediately began talking about perjury charges: the previously-unknown “program” came as very convenient for Gonzales, who had told the Senate on February 6, 2006 that no one within the Justice Department had dissented from the program the “president described.”

* * *

If Gonzales concedes that the March 10, 2004 meeting was about the TSP, he’ll be conceding that Comey’s objections were indeed about the TSP — and that means that his February 6, 2006 testimony misled the Senate. In other words, unless Gonzales can prove that the March 10, 2004 meeting wasn’t about the TSP, he’s going to be hounded by perjury charges for the rest of his tenure.

Additionally, Jack Goldsmith testified on October 1, 2007, that

And counter to former Attorney General Alberto Gonzales’ testimony to Congress, Goldsmith said there were “enormous disagreements about many aspects of the Terrorist Surveillance Program.” Goldsmith repeatedly used the plural when describing those disagreements, making it clear that it was not a single aspect of the program that was at issue. Goldsmith: Legal Basis for Surveillance Program was “Biggest Mess” , TPMMuckraker, October 1, 2007

Senators renew call for Gonzales’ resignation, USA Today, May 16, 2007

Another Surveillance Program or a Lie?, TPMMuckraker, May 22, 2007

Ashcroft: Officials fought over snooping, USA Today, June 21, 2007

Leahy to Gonzales: Start Trying to Remember Now, TPMMuckraker, July 18, 2007

Today’s Must Read, TPMMuckraker, July 18, 2007

Documents contradict Gonzales’ testimony, USA Today, July 25, 2007

Letter from Sens. Schumer, Feinstein, Feingold and Whitehouse to Solicitor General Paul Clement , July 26, 2007

Rules Violated:

  1. Rule 3.04 Fairness in Adjudicatory Proceedings
  2. Rule 3.05 Maintaining Impartiality of Tribunal
  3. Rule 3.10 Advocate in Nonadjudicative Proceedings
  4. Rule 8.04 Misconduct

Texas Professional Ethics Opinions:

OPINION 473, June 1991
Tex. Comm. on Professional Ethics, Op. 473, V. 56 Tex. B.J. 705 (1993)
Section 3.03(a)(2) of the Texas Rules of Professional Conduct requires a lawyer to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act….

Attempt to Improperly Influence a Witness and False Statements to Congress

On May 23, 2007, former Justice Department aide Monica Goodling testified to the Senate Judiciary Committee that a conversation with Gonzales about his recollections of the dismissal of eight U.S. attorneys made her “uncomfortable.” According to Goodling in her testimony to Congress, Gonzales recounted his recollection of events surrounding the firing of up to nine (9) United States Attorneys before asking for her reaction. Goodling testified that Gonzales began telling Goodling what he remembered about the firing process and then asked her if she had “any reaction” to his memory. “I didn’t know that it was maybe appropriate for us to talk about that,” she said, adding that it made her “uncomfortable.” She said Gonzales’ comments discomfited her because both Congress and the Justice Department had already launched investigations of the dismissals. Additionally, Goodling’s testimony contradicted Gonzales’ testimony to Congress that he could not remember numerous details about the prosecutors’ dismissals because he had purposely avoided discussing the issue with other potential “fact witnesses.” This matter is also under investigation by the U.S. Department of Justice, Office of the Inspector General.

Goodling Testifies about Gonzales Meeting , TPMMuckraker, May 23, 2007

Letter to Sens. Leahy and Specter from US DoJ, OIG, TPMMuckraker, May 23, 2007

Gonzales Meeting With Aide Scrutinized , The Washington Post, June 15, 2007

Leahy asks Gonzales to clarify testimony, USA Today, July 18, 2007

Leahy to Gonzales: Start Trying to Remember Now, TPMMuckraker, July 18, 2007

Gonzales: Witness Tampering? No, It Was Witness Consolation, TPMMuckraker, July 24, 2007

Letter from Sens. Schumer, Feinstein, Feingold and Whitehouse to Solicitor General Paul Clement , July 26, 2007

Rules Violated:

  1. Rule 1.06 Conflict of Interest: General Rule
  2. Rule 3.04 Fairness in Adjudicatory Proceedings
  3. Rule 3.05 Maintaining Impartiality of Tribunal
  4. Rule 3.10 Advocate in Nonadjudicative Proceedings
  5. Rule 8.04 Misconduct

Texas Professional Ethics Opinions:

OPINION 473, June 1991
Tex. Comm. on Professional Ethics, Op. 473, V. 56 Tex. B.J. 705 (1993)
Section 3.03(a)(2) of the Texas Rules of Professional Conduct requires a lawyer to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act….

Complicity in Violations of the Presidential Records Act

During investigation of the firing of nine (9) United States Attorneys, the House Oversight and Government Reform Committee learned that Republican National Committee e-mail accounts, that were supposed to be used only to conduct political work, were in fact used to evade the federal law on retaining presidential records. The existence of such communications were discovered in the investigation of the firing of nine (9) U.S. attorneys last year. In a letter to White House Counsel Fred Fielding, Rep. Henry Waxman noted e-mails from senior aides who were using the RNC and other e-mail accounts that were controlled by the Bush-Cheney ’04 campaign.

Since March, the Committee has been examining why White House officials used e-mail
accounts operated and controlled by the Republican National Committee for official government
business, apparently in violation of the Presidential Records Act. I am writing to request your
assistance in obtaining documents and interviews relevant to the Committee’s investigation.
On June 18,2007 ,I released an interim report prepared by the majority staff on the status
of the Committee’s investigation. This report found that at least 88 White House officials had
RNC e-mail accounts, more than the White House had previously acknowledged. It also found
that although the RNC has preserved 674,367 e-mails to or from White House officials on RNC
accounts, there was extensive destruction by the RNC of White House e-mails. Of the 88 White
House officials who received RNC e-mail accounts, the RNC preserved no e-mails for 51
officials. In general, the RNC appears to have destroyed most of the e-mails sent or received by
White House officials prior to 2006.

The interim report described evidence that the Office of White House Counsel under
Alberto Gonzales may have known that White House officials were using RNC e-mail accounts
for official business, but took no action to preserve these presidential records. In a deposition
before the Committee on May 10, 2007, Susan Ralston, Karl Rove’s former executive assistant,
testified that she and Mr. Rove searched for e-mails on his political accounts in response to
requests from two separate investigations. Ms. Ralston stated that in 2001, Mr. Rove was asked
to search his political computer in response to a request relating to an investigation involving
Enron. She testified that the White House Counsel’s office would have known about these searches “because all of the documents that we collected were then turned over to the White
House Counsel’s office.”2 According to Ms. Ralston, this investigation was related to the Vice
President’s energy task force and contacts with Enron.’

In addition, Ms. Ralston testified that Mr. Rove searched his RNC e-mail account in
response to several subpoenas from Patrick Fitzgerald during the investigation into the leak of
the identity of CIA officer Valerie Plame Wilson. She testified that the White House Counsel’s
office also knew about these searches and received copies of the search results.

It would be a matter of serious concern if Mr. Gonzales or other attorneys in the Office of
White House Counsel were aware that White House officials were using RNC e-mail accounts to
conduct official White House business, but ignored these apparent violations of the Presidential
Records Act.

Letter from Rep. Henry Waxman to Fred Fielding, July 25, 2007

Letter from Sens. Schumer, Feinstein, Feingold and Whitehouse to Solicitor General Paul Clement , July 26, 2007

Rules Violated:

  1. Rule 1.06 Conflict of Interest: General Rule
  2. Rule 8.03 Reporting Professional Misconduct (regarding any improper use of e-mails by Harriet Miers)
  3. Rule 8.04 Misconduct

False Statements to Congress regarding abuses of USA Patriot Act by FBI

In testimony to the Senate seeking to renew the USA Patriot Act two years ago, Gonzales testified that the FBI had not abused its use of national security letters. Specifically, he stated on April 27, 2005 that “There has not been one verified case of civil liberties abuse.” However , six (6) days earlier,

the FBI sent Gonzales a copy of a report that said its agents had obtained personal information that they were not entitled to have. It was one of at least half a dozen reports of legal or procedural violations that Gonzales received in the three months before he made his statement to the Senate intelligence committee, according to internal FBI documents released under the Freedom of Information Act.

The acts recounted in the FBI reports included unauthorized surveillance, an illegal property search and a case in which an Internet firm improperly turned over a compact disc with data that the FBI was not entitled to collect, the documents show. Gonzales was copied on each report that said administrative rules or laws protecting civil liberties and privacy had been violated.

The reports also alerted Gonzales in 2005 to problems with the FBI’s use of an anti-terrorism tool known as a national security letter (NSL), well before the Justice Department’s inspector general brought widespread abuse of the letters in 2004 and 2005 to light in a stinging report this past March.

Gonzales Was Told of FBI Violations , John Solomon, Washington Post, July 10, 2007

When Did AG Gonzales Know About FBI Abuses? , TPMMuckraker, July 10, 2007

Today’s Must Read , TPMMuckraker, July 10, 2007

Gonzales: NSL Abuses Weren’t Really Abuses , TPMMuckraker, July 24, 2007

Letter from Sens. Schumer, Feinstein, Feingold and Whitehouse to Solicitor General Paul Clement , July 26, 2007

Rules Violated:

  1. Rule 3.04 Fairness in Adjudicatory Proceedings
  2. Rule 3.05 Maintaining Impartiality of Tribunal
  3. Rule 3.10 Advocate in Nonadjudicative Proceedings
  4. Rule 8.04 Misconduct

Texas Professional Ethics Opinions:

OPINION 473, June 1991
Tex. Comm. on Professional Ethics, Op. 473, V. 56 Tex. B.J. 705 (1993)
Section 3.03(a)(2) of the Texas Rules of Professional Conduct requires a lawyer to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act….

Conflict of Interest and/or Failure to Procure Written Waiver of Conflict

Murray Waas of the National Journal, writes that

Shortly before Attorney General Alberto Gonzales advised President Bush last year on whether to shut down a Justice Department inquiry regarding the administration’s warrantless domestic eavesdropping program, Gonzales learned that his own conduct would likely be a focus of the investigation, according to government records and interviews.

Bush personally intervened to sideline the Justice Department probe in April 2006 by taking the unusual step of denying investigators the security clearances necessary for their work.

It is unclear whether the president knew at the time of his decision that the Justice inquiry — to be conducted by the department’s internal ethics watchdog, the Office of Professional Responsibility — would almost certainly examine the conduct of his attorney general.

Sources familiar with the halted inquiry said that if the probe had been allowed to continue, it would have examined Gonzales’ role in authorizing the eavesdropping program while he was White House counsel, as well as his subsequent oversight of the program as attorney general.

Both the White House and Gonzales declined comment on two issues — whether Gonzales informed Bush that his own conduct was about to be scrutinized, and whether he urged the president to close down the investigation, which had been requested by Democratic members of Congress.

* * *

Stephen Gillers, a law professor at the New York University School of Law and an expert on legal ethics issues, questioned Gonzales’s continued role in advising Bush in any capacity about the probe after he learned that his own conduct might be scrutinized: “If the attorney general was on notice that he was a person of interest to the OPR inquiry, he should have stepped aside and not been involved in any decisions about the scope or the continuation of the investigation.”

Bush Blocked Justice Department Investigation, Murray Waas, National Journal, July 18, 2006

Internal Affairs, Murray Waas, National Journal, March 15, 2007

Gonzales: Don’t Blame Me, Blame Bush, TPMMuckraker, March 23, 2007

Memorandum to the Senate Judiciary Committee from Chairman John Conyers, pp. 14 -5, July 24, 2007

The Case Against Gonzales , The Anonymous Liberal, July 27, 2007

Rules Violated:

  1. Rule 1.06 Conflict of Interest: General Rule
  2. Rule 8.04 Misconduct

Texas Professional Ethics Opinion:

OPINION 325, December 1966
[Citing] Opinion 173 (March, 1968):
“Public officials should act with the utmost caution at all times to avoid any suspicion on the part of the public that there is some influence operating on the Court in the handling of matters before it and they should not conduct themselves in such a way as to impair the confidence which the community has in the administration of justice.”
The same policy carries forward to the conduct of an attorney after his retirement from public office and he should not accept employment in any matter which might be calculated to arouse suspicion of impropriety in the public mind.

OPINION 367, March 1974
Ethical Consideration 9-3 of the Code of Professional Responsibility provides “after a lawyer leaves judicial office or other public employment, he should not accept employment in connection with any matter in which he had substantial responsibility prior to his leaving, since to accept employment would give the appearance of impropriety even if none exists.

OPINION 441, March 1987
Tex. Comm. on Professional Ethics, Op. 441, V. 50 Tex. B.J. 618 (1987)
A lawyer may not represent an interest adverse to a client’s or a former client’s interest if the two matters are substantially related. Such adverse representation is prohibited in order to avoid conflicts of interest.

OPINION 494, February 1994
Tex. Comm. on Professional Ethics, Op. 494, V. 57 Tex. B.J. 786 (1994)
Is an attorney disqualified from representing a client in a situation where the husband had a brief consultation with the attorney in 1986, and the wife consulted the attorney in a subsequent divorce action in 1992?
* * *
Were the factual matters involved in the representation so related that there is a genuine threat that confidences gained in the former representation will be divulged to the attorney’s present client?
ANSWER
Yes. The wife seeks to have the attorney represent her in a divorce from her husband, after the husband consulted with the attorney about a possible divorce from his wife. Obviously this factor is met. In a similar opinion, (Opinion 294, TBJ, September 1964) the committee found that an attorney who represented the wife in a prior divorce action, which was dismissed upon reconciliation, could not ethically represent her husband in a subsequent divorce suit filed against her by her husband. The committee reasoned that an attorney’s duty to preserve a client’s confidence outlasts his or her employment, and employment which involves the disclosure or use of these confidences to the disadvantage of the client.
CONCLUSION
The attorney’s representation of the wife would be in violation of the Texas Disciplinary Rules of Professional Conduct.

OPINION 527, April 1999
Tex. Comm. on Professional Ethics. Op. 527, V. 62 Tex. B.J. 4 (1999)
SUMMARY OF APPLICABLE RULE
Prior applicable ethics opinions, decisions of the Texas Supreme Court, and the provisions of Rule 1.09 may be summarized as follows:
1. Rule 1.09 prohibits an attorney who has personally represented a former client from representing a person in a matter adverse to the former client if such new representation would violate any of the provisions of Rule 1.09(a).
2. If an attorney is prohibited under Rule 1.09(a) from accepting a representation adverse to a former client, each attorney currently associated with such disqualified attorney is vicariously prohibited from accepting such representation under Rule 1.09(b).
3. If an attorney who personally represented a former client leaves a law firm, the lawyers who remain at the firm are thereafter prohibited from knowingly representing a person adverse to that former client only if a lawyer presently associated with the firm is personally disqualified from accepting the representation under Rule 1.09(a) or the firm’s proposed representation involves the validity of the departed lawyer’s legal services or work product for such former client while he was associated with the firm, or the proposed representation will with reasonable probability involve a violation of Rule 1.05 with respect to the confidential information of such former client.
4. If, as in this ethics opinion, a lawyer terminates his association with a law firm and such firm retains as a client a person whom the departing lawyer personally represented while he was associated with the firm, any subsequent representation by the departed lawyer adverse to such former client is governed by Rule 1.09(a). And, all lawyers currently associated with the departed lawyer are treated the same by reason of Rule 1.09(b). The departed lawyer and members of his new firm can represent a person adverse to such former client only if the representation does not violate Rule 1.09(a)(1),(2), or (3).

False Statements to Congress regarding Intentions to appoint US Attorneys pursuant to USA Patriot Act

On January 18, 2007, Alberto Gonzales testified before the Senate Judiciary Committee and stated:

“I am fully committed, as the administration’s fully committed, to ensure that, with respect to every United States attorney position in this country, we will have a presidentially appointed, Senate-confirmed United States attorney.”

CAUGHT ON TAPE: Gonzales Lies Under Oath, Think Progress, March 16, 2007

Again on April 19, 2007, Gonzales testified that had rejected a White House plan to appoint United States Attorneys pursuant to recent amendments to the USA Patriot Act which would permit the Attorney General to appoint United States Attorneys without having the appointments confirmed by the United States Senate and further stated that he never considered the plan. However, Gonzales’ former chief of staff Kyle Sampson testified in March to the Senate Judiciary Committee that Gonzales did not reject the idea of circumventing the Senate until after Gonzales had spoken with Sen. Mark Pryor (D-AR) in mid-December about Tim Griffin’s appointment as a United States Attorney in Arkansas. Sampson testified that he did discuss the idea with Gonzales and that Gonzales did not reject the outright.

Schumer Tears into Gonzales, TPMMuckraker, April 19, 2007

Rules Violated:

  1. Rule 3.04 Fairness in Adjudicatory Proceedings
  2. Rule 3.05 Maintaining Impartiality of Tribunal
  3. Rule 3.10 Advocate in Nonadjudicative Proceedings
  4. Rule 8.04 Misconduct

Texas Professional Ethics Opinions:

OPINION 473, June 1991
Tex. Comm. on Professional Ethics, Op. 473, V. 56 Tex. B.J. 705 (1993)
Section 3.03(a)(2) of the Texas Rules of Professional Conduct requires a lawyer to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act….

Conflict of Interest

In his letter to Senator Patrick Leahy and Congressman Paul Hodes, Attorney Paul Twomey states:

We are writing to you in order to bring to your attention to what appears to be disturbing evidence of a pattern of political interference in the Department of Justice’s investigation of the phone jamming in 2002 United States Senate election in the State of New Hampshire.

On November 5, 2002, operatives working on behalf of the New Hampshire Republican Party entered into a criminal conspiracy which had as its goal the total disruption of the political communications of the New Hampshire Democratic Party in order to gain an unfair advantage in what was a very closely contested United States Senate election. To date, four individuals have been indicted and convicted including Charles McGee, the 2002 Executive Director of the Republican Party and James Tobin, a long time Republican operative who was at that time Regional Political Director for both the Republican National Committee (RNC) and the National Republican Senatorial Committee. (NRSC)

Additionally, a civil suit was brought on behalf of the New Hampshire Democratic Party against the New Hampshire Republican State Committee, the Republican National Committee and the National Republican Senatorial Committee. Throughout both the criminal prosecution and the civil suit, there were repeated actions of commission and omission on the part of the Department of Justice that give rise to serious questions as to whether or not there was political interference which operated to distort the judicial process.

* * *

After the filing of the criminal charges when an attorney acting for the Democratic Party, Finis Williams, was informed by the prosecutor that the delays were
due to the extreme difficulty in obtaining authorization from higher levels at DOJ for any and all actions in the case. We have been further informed by Attorney John Durkin (counsel for Republican criminal defendants, Allen Raymond) that he was told by a DOJ prosecutor that all decisions in this case had to be made subject to the approval of the Attorney General himself who had to sign off on all actions in this case. As will be discussed below, the two individuals who served as Attorney General during this case both have actual conflicts of interest that would appear to rule out ethical involvement in the investigation and prosecution of the phone jamming.

* * *

As stated above, prosecutors in this case have indicated that both that the slow pace of this case has been occasioned by delays caused by individuals at the highest levels of the Department of Justice and that all decisions had to be reviewed by the Attorney General himself. Given the extreme and critical importance of an assault on free elections by high officials in a major political party, is it certainly appropriate for attention to be given to the case by at the highest levels at the Department of Justice. However, the attention so given should be of assistance in the expeditious and efficacious prosecution of those involved. In this case, however, the attention of the higher ups in the Justice Department served only to delay, if not deny, justice.

Both Attorney General’s Ashcroft and Gonzalez had personal conflicts of interest which should have resulted in them recusing themselves from all action in the case. Attorney General Ashcroft, at the time of these events, had recently been a United States Senator and a member of the National Republican Senatorial Committee, one of the organizations for which James Tobin was working when he undertook his criminal activities. The conflict for Attorney General Gonzalez is even more apparent. At the time of the phone jamming, Attorney General Gonzales was legal counsel to the White House. During the course of the criminal conspiracy, defendant, James Tobin, made literally hundreds of calls to the political office of the White House. In the civil case, a deposition was taken of Alicia Davis, Deputy to Ken Mehlman, who was then the Political Director of the White House regarding her conversations with both Tobin and Jayne Millerick, a Republican operative on Election Day 2002. The New Hampshire Democratic Party sought to have documents produced from the White House concerning these contacts. (This request was denied by the White House on the grounds of executive privilege, although the documents sought only related to the non-official actions of the White House Political Office would not appear to be subject to executive privilege. In fact, the phone records sought were for phones that could not be paid by public funds according to the terms of the Hatch Act).

It is perfectly clear that there were significant questions regarding the involvement of the political office of the White House in this case. When it came to light that the Republican National Committee had paid several million dollars for the legal fees of James Tobin, former, RNC Chair Gillespie told a reporter that the decision to pay these legal fees made in consultation with the White House.
As Attorney General Gonzalez was then counsel for the White House, it is totally inappropriate for him to have taken any part in investigation and prosecution of the phone jamming case where part of the inquiry would involve the possible involvement of individuals working for the White House.

Letter to Sen. Leahy and Cong. Hodes, Paul Twomey, Esq., March 21, 2007

Rules Violated:

  1. Rule 1.06 Conflict of Interest: General Rule
  2. Rule 8.04 Misconduct

Texas Professional Ethics Opinions:

OPINION 325, December 1966
[Citing] Opinion 173 (March, 1968):
“Public officials should act with the utmost caution at all times to avoid any suspicion on the part of the public that there is some influence operating on the Court in the handling of matters before it and they should not conduct themselves in such a way as to impair the confidence which the community has in the administration of justice.”
The same policy carries forward to the conduct of an attorney after his retirement from public office and he should not accept employment in any matter which might be calculated to arouse suspicion of impropriety in the public mind.

OPINION 367, March 1974
Ethical Consideration 9-3 of the Code of Professional Responsibility provides “after a lawyer leaves judicial office or other public employment, he should not accept employment in connection with any matter in which he had substantial responsibility prior to his leaving, since to accept employment would give the appearance of impropriety even if none exists.

OPINION 441, March 1987
Tex. Comm. on Professional Ethics, Op. 441, V. 50 Tex. B.J. 618 (1987)
A lawyer may not represent an interest adverse to a client’s or a former client’s interest if the two matters are substantially related. Such adverse representation is prohibited in order to avoid conflicts of interest.

OPINION 494, February 1994
Tex. Comm. on Professional Ethics, Op. 494, V. 57 Tex. B.J. 786 (1994)
Is an attorney disqualified from representing a client in a situation where the husband had a brief consultation with the attorney in 1986, and the wife consulted the attorney in a subsequent divorce action in 1992?
* * *
Were the factual matters involved in the representation so related that there is a genuine threat that confidences gained in the former representation will be divulged to the attorney’s present client?
ANSWER
Yes. The wife seeks to have the attorney represent her in a divorce from her husband, after the husband consulted with the attorney about a possible divorce from his wife. Obviously this factor is met. In a similar opinion, (Opinion 294, TBJ, September 1964) the committee found that an attorney who represented the wife in a prior divorce action, which was dismissed upon reconciliation, could not ethically represent her husband in a subsequent divorce suit filed against her by her husband. The committee reasoned that an attorney’s duty to preserve a client’s confidence outlasts his or her employment, and employment which involves the disclosure or use of these confidences to the disadvantage of the client.
CONCLUSION
The attorney’s representation of the wife would be in violation of the Texas Disciplinary Rules of Professional Conduct.

OPINION 527, April 1999
Tex. Comm. on Professional Ethics. Op. 527, V. 62 Tex. B.J. 4 (1999)
SUMMARY OF APPLICABLE RULE
Prior applicable ethics opinions, decisions of the Texas Supreme Court, and the provisions of Rule 1.09 may be summarized as follows:
1. Rule 1.09 prohibits an attorney who has personally represented a former client from representing a person in a matter adverse to the former client if such new representation would violate any of the provisions of Rule 1.09(a).
2. If an attorney is prohibited under Rule 1.09(a) from accepting a representation adverse to a former client, each attorney currently associated with such disqualified attorney is vicariously prohibited from accepting such representation under Rule 1.09(b).
3. If an attorney who personally represented a former client leaves a law firm, the lawyers who remain at the firm are thereafter prohibited from knowingly representing a person adverse to that former client only if a lawyer presently associated with the firm is personally disqualified from accepting the representation under Rule 1.09(a) or the firm’s proposed representation involves the validity of the departed lawyer’s legal services or work product for such former client while he was associated with the firm, or the proposed representation will with reasonable probability involve a violation of Rule 1.05 with respect to the confidential information of such former client.
4. If, as in this ethics opinion, a lawyer terminates his association with a law firm and such firm retains as a client a person whom the departing lawyer personally represented while he was associated with the firm, any subsequent representation by the departed lawyer adverse to such former client is governed by Rule 1.09(a). And, all lawyers currently associated with the departed lawyer are treated the same by reason of Rule 1.09(b). The departed lawyer and members of his new firm can represent a person adverse to such former client only if the representation does not violate Rule 1.09(a)(1),(2), or (3).

False Statements to Congress regarding reasons for firing nine (9) US Attorneys

Gonzales testified to the Senate Judiciary Committee that he would ‘never, ever make a change in a United States attorney position for political reasons…. I just would not do it.” This is claim is directly contrary to the known facts that United States Attorney Bud Collins and other United States Attorneys were asked to resign so that Tim Griffin, as a replacement for Mr. Collins, and others to “build there resumes [and] get in (sic) experience Attorney as a United States attorney.”

Memorandum to the Senate Judiciary Committee from Chairman John Conyers, pp. 14 -5, July 24, 2007

Rules Violated:

  1. Rule 3.04 Fairness in Adjudicatory Proceedings
  2. Rule 3.05 Maintaining Impartiality of Tribunal
  3. Rule 3.10 Advocate in Nonadjudicative Proceedings
  4. Rule 8.04 Misconduct

Texas Professional Ethics Opinions:

OPINION 473, June 1991
Tex. Comm. on Professional Ethics, Op. 473, V. 56 Tex. B.J. 705 (1993)
Section 3.03(a)(2) of the Texas Rules of Professional Conduct requires a lawyer to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act….

False Statements to Congress regarding Conversations with Senator Pete Domenici

Gonzales testified to the Senate Judiciary Committee that in a conversation that occurred he spoke to Senator Pete Domenici who, according to Sen. Domenici, criticized the performance of United States Attorney David Iglesias. William Moschella, an attorney with DoJ, testified that he was present during each of these phone conferences, that it was his impression that each conversation regarded only the allocation of additional funding and that Gonzales had never relayed to him that the calls were critical of Iglesias. An e-mail regarding a phone conference further states that “Senator Domenici would like to talk to the AG regarding his concerns about staffing shortages” which supports Mr. Moschella’s contention that that conversation(s) were about funding issues only.

Memorandum to the Senate Judiciary Committee from Chairman John Conyers, pp. 14 -5, July 24, 2007

Rules Violated:

  1. Rule 3.04 Fairness in Adjudicatory Proceedings
  2. Rule 3.05 Maintaining Impartiality of Tribunal
  3. Rule 3.10 Advocate in Nonadjudicative Proceedings
  4. Rule 8.04 Misconduct

Texas Professional Ethics Opinions:

OPINION 473, June 1991
Tex. Comm. on Professional Ethics, Op. 473, V. 56 Tex. B.J. 705 (1993)
Section 3.03(a)(2) of the Texas Rules of Professional Conduct requires a lawyer to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act….

Failure to report Unethical Conduct

Then-White House Counsel Harriet Miers was properly served with a compulsory subpoena issued by the House Judiciary Committee. Claiming executive privilege, Ms. Miers failed to appear before the relevant tribunal. Gonzales knew about the compulsory subpoena and provided legal advise to Ms. Miers through the Department of Justice that application of the privilege obviated her need to even appear before the tribunal.

And as noted above, in his letter to White House Counsel Fred Fielding, Rep. Henry Waxman noted e-mails from senior aides who were using the RNC and other e-mail accounts that were controlled by the Bush-Cheney ’04 campaign:

It would be a matter of serious concern if Mr. Gonzales or other attorneys in the Office of
White House Counsel were aware that White House officials were using RNC e-mail accounts to
conduct official White House business, but ignored these apparent violations of the Presidential
Records Act.

Letter from Rep. Henry Waxman to Fred Fielding, July 25, 2007

Rules Violated:

  1. Rule 1.06 Conflict of Interest: General Rule
  2. Rule 8.03 Reporting Professional Misconduct
  3. Rule 8.04 Misconduct

Texas Professional Ethics Opinions:

OPINION 520, May 1997
Tex. Comm. on Professional Ethics, Op. 520, V. 60 Tex. B.J. 490 (1997)
QUESTION
Does Rule 8.03 of the Texas Disciplinary Rules of Professional Conduct require a lawyer to report suspected misconduct by another lawyer, when the first lacks solid proof that the second lawyer engaged in the suspected conduct?
DISCUSSION
Rule 8.03 of the Texas Disciplinary Rules of Professional Conduct (Rules) provides in pertinent part:
(a) Except as permitted in paragraphs (c) or (d), [FN1] a lawyer having knowledge that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority.
Comment three explains that Rule 8.03 “. . . describes only those disciplinary violations that must be revealed by the disclosing lawyer in order for that lawyer to avoid violating [the] rules.” (Emphasis added.) Comment four further elaborates by stating that Rule 8.03 “limits [a lawyer's] reporting obligations to those offenses that a self-regulating profession must vigorously endeavor to prevent.” Hence a lawyer is required to report violations of the applicable rules of professional conduct that raise a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.
Comment three, however, also provides that Rule 8.03 “is not intended to . . . limit those actual or suspected violations that a lawyer may report to an appropriate disciplinary authority.” (Emphasis added.) Rather, lawyers are instructed to use their best judgment in complying with the reporting requirements of the rule. See comment four.
With regard to a report of alleged misconduct, comment two recognizes that “. . . the existence of a violation [frequently] cannot be established with certainty until a disciplinary investigation . . . has been undertaken. Similarly, an apparently isolated violation may indicate a pattern of misconduct that only such an investigation or inquiry can uncover. Consequently, a lawyer should not fail to report an apparent disciplinary violation merely because he or she cannot determine its existence or scope with absolute certainty.”
The text of Rule 8.03(a), however, requires that a lawyer have knowledge (rather than suspicion) that another lawyer has committed a violation of the applicable rules before informing the appropriate disciplinary authority. A report of misconduct must therefore be based upon objective facts that are likely to have evidentiary support.
CONCLUSION
Rule 8.03(a) of the Texas Disciplinary Rules of Professional Conduct is limited to those disciplinary violation that must be revealed by the disclosing lawyer in order for that lawyer to avoid violating the rules. As recognized in the commentary, however, Rule 8.03(a) is not intended to limit the actual or suspected violations that a lawyer may report to an appropriate disciplinary authority. Before reporting an alleged violation, however, Rule 8.03(a) requires that a lawyer have knowledge that another lawyer has in fact committed a violation of the rules. A report of misconduct must therefore be based upon such objective facts that are likely to have evidentiary support. It is beyond the scope of this opinion to comment on specific facts that would constitute sufficient basis for a report of misconduct.

FN1–Paragraph (c) pertains to a lawyer who knows or suspects that another lawyer or judge is impaired by chemical dependency on alcohol or drugs, or by mental illness. Paragraph (d) pertains to the disclosure/non-disclosure of confidential information.

Text of, and selected comments to, Rules of Professional Conduct violated by Alberto Gonzales:

Rule: 1.06 Conflict of Interest: General Rule

(a) A lawyer shall not represent opposing parties to the same litigation.

(b) In other situations and except to the extent permitted by paragraph (c), a lawyer shall not
represent a person if the representation of that person:

(1) involves a substantially related matter in which that person’s interests are materially
and directly adverse to the interests of another client of the lawyer or the lawyers firm; or

(2) reasonably appears to be or become adversely limited by the lawyers or law firm’s
responsibilities to another client or to a third person or by the lawyers or law firm’s own
interests.

(c) A lawyer may represent a client in the circumstances described in (b) if:

(1) the lawyer reasonably believes the representation of each client will not be materially
affected; and

(2) each affected or potentially affected client consents to such representation after full
disclosure of the existence, nature, implications, and possible adverse consequences of
the common representation and the advantages involved, if any.

(d) A lawyer who has represented multiple parties in a matter shall not thereafter represent any
of such parties in a dispute among the parties arising out of the matter, unless prior consent is
obtained from all such parties to the dispute.

(e) If a lawyer has accepted representation in violation of this Rule, or if multiple representation
properly accepted becomes improper under this Rule, the lawyer shall promptly withdraw from
one or more representations to the extent necessary for any remaining representation not to be
in violation of these Rules.

(f) If a lawyer would be prohibited by this Rule from engaging in particular conduct, no other

Rule: 3.10 Advocate in Nonadjudicative Proceedings

A lawyer representing a client before a legislative or administrative body in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.04(a) through (d), 3.05(a), and 4.01.

Comment: 1. In appearing before bodies such as legislatures, municipal councils, and executive and administrative agencies acting in a rule-making or policy-making capacity, lawyers present facts, formulate issues and advance argument in the matters under consideration. The decision-making body, like a court, should be able to rely on the integrity of the submissions made to it. A lawyer appearing before such a body should deal with the tribunal honestly and in conformity with applicable rules of procedure. A lawyer is required to disclose whether a particular appearance is in a representative capacity. Although not required to do so by Rule 3.10, a lawyer should reveal the identities of the lawyers clients, unless privileged or otherwise protected, so that the decision-making body can weigh the lawyers presentation more accurately. See Rule 4.01, Comment 1.

2. Lawyers have no exclusive right to appear before nonadjudicative bodies, as they do before a court. The requirements of this Rule therefore may subject lawyers to regulations inapplicable to advocates who are not lawyers.

3. As to the representation of a client in a negotiation or other bilateral transaction with a governmental agency, see Rules 4.01 through 4.04.

Rule: 3.04 Fairness in Adjudicatory Proceedings

A lawyer shall not:
(a) unlawfully obstruct another party’s access to evidence; in anticipation of a dispute unlawfully alter, destroy or conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value; or counsel or assist another person to do any such act.
(b) falsify evidence, counsel or assist a witness to testify falsely, or pay, offer to pay, or acquiesce in the offer or payment of compensation to a witness or other entity contingent upon the content of the testimony of the witness or the outcome of the case. But a lawyer may advance, guarantee, or acquiesce in the payment of:
(1) expenses reasonably incurred by a witness in attending or testifying;
(2) reasonable compensation to a witness for his loss of time in attending or testifying;
(3) a reasonable fee for the professional services of an expert witness.
(c) except as stated in paragraph (d), in representing a client before a tribunal:
(1) habitually violate an established rule of procedure or of evidence;
(2) state or allude to any matter that the lawyer does not reasonably believe is relevant to such proceeding or that will not be supported by admissible evidence, or assert personal knowledge of facts in issue except when testifying as a witness;
(3) state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused, except that a lawyer may argue on his analysis of the evidence and other permissible considerations for any position or conclusion with respect to the matters stated herein;
(4) ask any question intended to degrade a witness or other person except where the lawyer reasonably believes that the question will lead to relevant and admissible evidence; or
(5) engage in conduct intended to disrupt the proceedings.
(d) knowingly disobey, or advise the client to disobey, an obligation under the standing rules of or a ruling by a tribunal except for an open refusal based either on an assertion that no valid obligation exists or on the clients willingness to accept any sanctions arising from such disobedience.

Rule: 3.05 Maintaining Impartiality of Tribunal

A lawyer shall not:
(a) seek to influence a tribunal concerning a pending matter by means prohibited by law or applicable rules of practice or procedure;

Rule: 4.01 Truthfulness in Statements to Others

In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid making the lawyer a party to a criminal act or knowingly assisting a fraudulent act perpetrated by a client.

Comment: False Statements of Fact
1. Paragraph (a) of this Rule refers to statements of material fact. Whether a particular statement should be regarded as one of material fact can depend on the circumstances. For example, certain types of statements ordinarily are not taken as statements of material fact because they are viewed as matters of opinion or conjecture. Estimates of price or value placed on the subject of a transaction are in this category. Similarly, under generally accepted conventions in negotiation, a party’s supposed intentions as to an acceptable settlement of a claim may be viewed merely as negotiating positions rather than as accurate representations of material fact. Likewise, according to commercial conventions, the fact that a particular transaction is being undertaken on behalf of an undisclosed principal need not be disclosed except where non-disclosure of the principal would constitute fraud.
2. A lawyer violates paragraph (a) of this Rule either by making a false statement of law or material fact or by incorporating or affirming such a statement made by another person. Such statements will violate this Rule, however, only if the lawyer knows they are false and intends thereby to mislead. As to a lawyers duty to decline or terminate representation in such situations, see Rule 1.15.
Failure to Disclose A Material Fact
3. Paragraph (b) of this Rule also relates only to failures to disclose material facts. Generally, in the course of representing a client a lawyer has no duty to inform a third person of relevant or material facts, except as required by law or by applicable rules of practice or procedure, such as formal discovery. However, a lawyer must not allow fidelity to a client to become a vehicle for a criminal act or a fraud being perpetrated by that client. Consequently a lawyer must disclose a material fact to a third party if the lawyer knows that the client is perpetrating a crime or a fraud and the lawyer knows that disclosure is necessary to prevent the lawyer from becoming a party to that crime or fraud. Failure to disclose under such circumstances is misconduct only if the lawyer intends thereby to mislead.
4. When a lawyer discovers that a client has committed a criminal or fraudulent act in the course of which the lawyer’s services have been used, or that the client is committing or intends to commit any criminal or fraudulent act, other of these Rules require the lawyer to urge the client to take appropriate action. See Rules 1.02(d), (e), (f); 3.03(b). Since the disclosures called for by paragraph (b) of this Rule will be necessary only if the lawyers attempts to counsel his client not to commit the crime or fraud are unsuccessful, a lawyer is not authorized to make them without having first undertaken those other remedial actions. See also Rule 1.05.
Fraud by a Client
5. A lawyer should never knowingly assist a client in the commission of a criminal act or a fraudulent act. See Rule 1.02(c).
6. This rule governs a lawyer’s conduct during the course of representing a client. If the lawyer has terminated representation prior to learning of a clients intention to commit a criminal or fraudulent act, paragraph (b) of this Rule does not apply. See Fraud under TERMINOLOGY.

Rule: 8.03 Reporting Professional Misconduct

(a) Except as permitted in paragraphs (c) or (d), a lawyer having knowledge that another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial question as to that lawyers honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority.

(b) Except as permitted in paragraphs (c) or (d), a lawyer having knowledge that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judges fitness for office shall inform the appropriate authority.

(c) A lawyer having knowledge or suspecting that another lawyer or judge whose conduct the lawyer is required to report pursuant to paragraphs (a) or (b) of this Rule is impaired by chemical dependency on alcohol or drugs or by mental illness may report that person to an approved peer assistance program rather than to an appropriate disciplinary authority. If a lawyer elects that option, the lawyers report to the approved peer assistance program shall disclose any disciplinary violations that the reporting lawyer would otherwise have to disclose to the authorities referred to in paragraphs (a) and (b).

(d) This rule does not require disclosure of knowledge or information otherwise protected as confidential information:

(1) by Rule 1.05 or

(2) by any statutory or regulatory provisions applicable to the counseling activities of the approved peer assistance program.

Comment: 1. Self-regulation of the legal profession requires that members of the profession take effective measures to protect the public when they have knowledge not protected as a confidence that a violation of these rules has occurred. Lawyers have a similar obligation with respect to judicial misconduct.

2. There are two ways that a lawyer may discharge this obligation. The first is to initiate a disciplinary investigation. See paragraphs (a) and (b). The second, applicable only where the reporting lawyer knows or suspects that the other lawyer or judge is impaired by chemical dependency on alcohol or drugs or by mental illness, is to initiate an inquiry by an approved peer assistance program. (See V.T.C.A., Health & Safety Code, ch. 467.) Under this Rule, a lawyer having reason to believe that another lawyer or judge qualifies for the approved peer assistance program reporting alternative may report that person to such a program, to an appropriate disciplinary authority, or to both. Frequently, the existence of a violation cannot be established with certainty until a disciplinary investigation or peer assistance program inquiry has been undertaken. Similarly, an apparently isolated violation may indicate a pattern of misconduct that only such an investigation or inquiry can uncover. Consequently, a lawyer should not fail to report an apparent disciplinary violation merely because he or she cannot determine its existence or scope with absolute certainty. Reporting a violation is especially important where the victim is unlikely to discover the offense absent such a report.

3. It should be noted that this Rule describes only those disciplinary violations that must be revealed by the disclosing lawyer in order for that lawyer to avoid violating these rules. It is not intended to, nor does it, limit those actual or suspected violations that a lawyer may report to an appropriate disciplinary authority. Similarly, a lawyer knowing or suspecting that another lawyer or judge is impaired by chemical dependency on alcohol or drugs or by mental illness may inform an approved peer assistance program of that concern even if unaware of any disciplinary violation committed by the supposedly impaired person.

4. If a lawyer were obliged to report every violation of these rules, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. Similar considerations apply to the reporting of judicial misconduct. A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term substantial refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. The term fitness has the meanings ascribed to it in the Terminology provisions of these Rules.

5. A report to a disciplinary authority of professional misconduct by a lawyer should be made and processed in accordance with the Texas Rules of Disciplinary Procedure. Comparable reports to approved peer assistance programs should follow the procedures those programs have established. A lawyer need not report misconduct where the report would involve a violation of Rule 1.05. or involve disclosure of information protected as confidential by the statutes or regulations governing any approved peer assistance program. However, a lawyer should consider encouraging a client to consent to disclosure where prosecution of the violation would not substantially prejudice the client’s interests. Likewise, the duty to report professional misconduct does not apply to a lawyer retained to represent a lawyer whose past professional conduct is in question. Such a situation is governed by the rules applicable to the client-lawyer relationship.

Rule: 8.04 Misconduct

(a) A lawyer shall not:

(1) violate these rules, knowingly assist or induce another to do so, or do so through the acts of another, whether or not such violation occurred in the course of a client-lawyer relationship;

(2) commit a serious crime or commit any other criminal act that reflects adversely on the lawyers honesty, trustworthiness or fitness as a lawyer in other respects;

(3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(4) engage in conduct constituting obstruction of justice;

(5) state or imply an ability to influence improperly a government agency or official;

(6) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law;

(7) violate any disciplinary or disability order or judgment;

(8) fail to timely furnish to the Chief Disciplinary Counsels office or a district grievance committee a response or other information as required by the Texas Rules of Disciplinary Procedure, unless he or she in good faith timely asserts a privilege or other legal ground for failure to do so;

(9) engage in conduct that constitutes barratry as defined by the law of this state;

(10) fail to comply with section 13.01 of the Texas Rules of Disciplinary Procedure relating to notification of an attorneys cessation of practice;

(11) engage in the practice of law when the lawyer is on inactive status or when the lawyers right to practice has been suspended or terminated, including but not limited to situations where a lawyers right to practice has been administratively suspended for failure to timely pay required fees or assessments or for failure to comply with Article XII of the State Bar Rules relating to Mandatory Continuing Legal Education; or

(12) violate any other laws of this state relating to the professional conduct of lawyers and to the practice of law.

(b) As used in subsection (a)(2) of this Rule, serious crime means barratry; any felony involving moral turpitude; any misdemeanor involving theft, embezzlement, or fraudulent or reckless misappropriation of money or other property; or any attempt, conspiracy, or solicitation of another to commit any of the foregoing crimes.

Comment: 1. There are four principal sources of professional obligations for lawyers in Texas: these Rules, the State Bar Act, the State Bar Rules, and the Texas Rules of Disciplinary Procedure (TRDP). Rule 1.06(O) of the TRDP contains a partial listing of the grounds for discipline under those Rules.

2. Rule 8.04 provides a comprehensive restatement of all forms of conduct that will subject a lawyer to discipline under either these Rules, the State Bar Act, the TRDP, or the State Bar Rules. In that regard, Rule 8.04(a)(1) is intended to correspond to TRDP Rule 1.06(O)(1); Rules 8.04(a)(2) and 8.04(b) are intended to correspond to the provisions of TRDP Rules 1.06(O)(8) and (9) and Rules 1.06(O) and (U), as well as certain other crimes; and Rules 8.04(a)(7)-(11) are intended to correspond to TRDP 1.06(O)(3)-(7), respectively. Rule 8.04(a)(12) of these Rules corresponds to a prohibition that was contained in the last (unnumbered) paragraph of former Article X, section 7, State Bar Rules.

3. The only provisions of TRDP Rule 1.06(O) not specifically referred to in Rule 8.04 is Rule 1.06(O)(2)s provision for imposing discipline on an attorney in Texas for conduct resulting in that lawyers discipline in another jurisdiction, which is provided for by Rule 8.05 of these Rules.

4. Many kinds of illegal conduct reflect adversely on fitness to practice law. However, some kinds of offenses carry no such implication. Traditionally in this state, the distinction has been drawn in terms of serious crimes and other offenses. See former Article X, sections 7(8) and 26 of the State Bar Rules (now repealed). The more recently adopted TRDP distinguishes between intentional crimes, serious crimes, and other offenses. See TRDP Rules 1.06(O) and (U), respectively. These Rules make only those criminal offenses either amounting to serious crimes or having the salient characteristics of such crimes the subject of discipline. See Rules 8.04(a)(2), 8.04(b).

5. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to his fitness for the practice of law, as fitness is defined in these Rules. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligations that legitimately could call a lawyer’s overall fitness to practice into question.

6. A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief, openly asserted, that no valid obligation exists. The provisions of Rule 1.02(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges to legal regulation of the practice of law.

7. Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyers abuse of public office can suggest an inability to fulfill the professional role of attorney. The same is true of abuse of positions of private trust. See Rules 8.04(a)(2), 8.04(a)(3), 8.04(b).

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24 Responses

  1. [...] Alberto Gonzales , Grievance Project, October 3, [...]

  2. [...] can file a grievance against Alberto Gonzales and Kyle D. Sampson (no matter the state in which you [...]

  3. [...] Alberto Gonzales [...]

  4. [...] Alberto Gonzales [...]

  5. [...] conduct that establish violations of the applicable rules of professional responsibility, including Alberto Gonzales, D. Kyle Sampson, Harriet Miers and yourself. In my opinion, you have committed numerous violations [...]

  6. [...] conduct that establish violations of the applicable rules of professional responsibility, including Alberto Gonzales, D. Kyle Sampson, Harriet Miers and yourself. In my opinion, you have committed numerous violations [...]

  7. [...] remember, it’s not just Yoo and Bybee. There’s Alberto Gonzales, Harriet E. Miers, Kyle D. Sampson, Senator Lisa Murkowski, Judge Mark Everett Fuller and many [...]

  8. [...] establish violations of the applicable rules of professional responsibility, including John Yoo, Alberto Gonzales, D. Kyle Sampson, and Harriet Miers. In my opinion, Professor Yoo has committed numerous violations [...]

  9. [...] that CREW has adopted a (my?) grievance strategy, I’ve prepared grievance complaints against Alberto Gonzales, Kyle D. Sampson, Lisa Murkowski, Harriet E. Miers, Mark Everett Fuller, and John Yoo that are [...]

  10. [...] conduct in which you’re admitted to report the ethical violations of other attorneys, such as Alberto Gonzales, Kyle D. Sampson, Lisa Murkowski, Harriet E. Miers, Mark Everett Fuller, John Yoo and Michael B. [...]

  11. [...] Scrolling down the page, I came across this reference to D. Kyle Sampson, another alumnus of the Alberto Gonzales-era Department of [...]

  12. [...] conduct that establish violations of the applicable rules of professional responsibility, including Alberto Gonzales, Kyle Sampson, Harriet Miers, John Yoo, Mark Everett Fuller, Monica Goodling. I’ve also [...]

  13. [...] conduct that establish violations of the applicable rules of professional responsibility, including Alberto Gonzales, D. Kyle Sampson, Harriet Miers and yourself. In my opinion, you have committed numerous violations [...]

  14. [...] conduct that establish violations of the applicable rules of professional responsibility, including Alberto Gonzales, Kyle Sampson, Harriet Miers, Lisa Murkowski, John Yoo, Mark Everett Fuller, Monica Marie Goodling, [...]

  15. [...] conduct that establish violations of the applicable rules of professional responsibility, including Alberto Gonzales, Kyle Sampson, Harriet Miers, Lisa Murkowski, John Yoo, Mark Everett Fuller, Monica Marie Goodling, [...]

  16. [...] I have prepared factual allegations of the conduct of various attorneys, including your client Alberto Gonzales, that establish violations of the applicable rules of professional responsibility. (I have also [...]

  17. [...] the media contact for GonzalesFacts.com, I would request a response on the record to these allegations that Alberto Gonzales has engaged in conduct that calls into question his fitness to practice law. [...]

  18. [...] applicable rules of professional responsibility. Previously, I have written about the conduct of Alberto Gonzales, Kyle Sampson, Harriet Miers, Lisa Murkowski, John Yoo, Mark Everett Fuller, Monica Marie Goodling, [...]

  19. [...] applicable rules of professional responsibility. Previously, I have written about the conduct of Alberto Gonzales, Kyle Sampson, Harriet Miers, Lisa Murkowski, John Yoo, Mark Everett Fuller, Monica Marie Goodling, [...]

  20. [...] that establish violations of the applicable rules of professional responsibility, including Alberto Gonzales, Kyle Sampson, Harriet Miers, Lisa Murkowski, John Yoo, Mark Everett Fuller, Monica Marie Goodling, [...]

  21. [...] to roost as employers shun toxic Bush lawyers Posted on March 10, 2009 by E.M. Noting that Alberto Gonzales hasn’t been able to find a job since his 2007 resignation, Charlie Savage and Scott Shane [...]

  22. [...] authorization and sanctioning of torture by the United States of America, including two attorneys, Alberto Gonzales and John Yoo, whose disbarments I have long been advocating. [A complete list of the grieved [...]

  23. Interesting:

    VISITOR ANALYSIS
    Referring Link No referring link
    Host Name
    IP Address 216.81.80.134 [Label IP Address]
    Country United States
    Region Iowa
    City Des Moines
    ISP Department Of Homeland Security [My emphasis.]
    [* * *]
    Navigation Path
    Date Time WebPage
    August 13th 2009 10:01:21 AM No referring link
    grievanceproject.wordpress.com/2007/10/03/alberto-gonzales/

  24. [...] Monica Goodling engaged in professional misconduct while in the employ of former Attorney General Alberto Gonzales. On March 14, 2011, the Fourth District Section II Subcommittee of the Virginia State Bar [...]

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