Harriet E. Miers


I have updated the statement of facts alleging various violations by Harriet E. Miers of the Texas Rules of Professional Conduct with the recent Memorandum Opinion in COMMITTEE ON THE JUDICIARY, U.S. HOUSE OF REPRESENTATIVES v. HARRIET MIERS, et al., Civil Action No. 08-0409 (JDB). in which United States District Judge John D. Bates confirms conduct of Ms. Miers that calls into question her fitness to practice law.

Personal Information:

  • Name: Miers, Harriet E.
  • Bar: Texas
  • ID No: 00000067
  • Status: Active

Grievance Information: Texas

Allegations:

Willful Failure to Appear pursuant to a Lawful United States House Judiciary Committee Subpoena

On June 13, 2007, Rep. John Conyers, Jr., and Sen Patrick Leahy, as Chairmen of the United States House and Senate Committees on the Judiciary, respectively, issued multiple subpoenas to former White House Counsel Harriet Miers to produce certain requested documents and to appear for testimony before the House Judiciary Subcommittee on Commercial and Administrative Law on July 12, 2007. See Conyers: Are Subpoenas Optional or Not?, Paul Kiel, TPMMuckraker.com, July 12, 2007; See also page 39, Memorandum to the Members of the Committee on the Judiciary from Rep. John C. Conyers, Jr., Chairman, dated July 24, 2007. On July 9, 2007, George Manning, attorney for Ms. Miers, informed the House Committee that Ms. Miers would “comply with the White House ‘direction[]’ by current White House Counsel Fred Fielding who “‘directed’ Ms. Miers not to provide testimony to the Committee. Id. at page 41. Chairman Conyers and Subcommittee Chair Linda Sanchez wrote to Mr. Manning stating “that it was incumbent on Ms. Miers to appear so that the Subcommittee could consider her claims of privilege concerning specific documents or in response to particular questions posed as the hearing. Id. Ms. Miers failed to appear before the House Judiciary Subcommittee on July 12, 2007. Id. at page 42. After failing to appear, and in response to an inquiry by Chairman Conyers, “Mr. Manning informed Chairmen Conyers on July 17, 2007, that his client intended to remain noncom pliant with the subpoena. Id . In the Memorandum, Chairman Conyers states:

Even more extraordinary than the executive privilege claims in this matter is the assertion that Ms. Miers, a former White House official not currently employed by the federal government, is absolutely immune from even appearing before the Subcommittee as directed by subpoena. The Supreme Court has specifically held that even a President, while serving in that capacity, can be subpoena by a court and can be required to participate in a civil lawsuit for damages by a private party. [FN 281] The Court’s holding in Jones flies in the face of the claim that a former White House official is somehow immune from even appearing in response to a Congressional subpoena. As with Sara Taylor, who received a subpoena similar to Ms. Miers’ but chose to appear and answer some questions before the Senate Judiciary Committee, no one can doubt that Ms. Miers would have been asked some questions that would not have fallen within even the broadest assertion of executive privilege, but Ms. Miers simply refused to attend her hearing altogether. Id .

* * *

[T]here is an additional reason that Ms. Miers’ claims concerning executive privilege were and should be rejected. When a private party like Ms. Miers is subject to a subpoena, it is improper for the subpoenaed person simply to refuse to … testify based on an assertion of privilege by a third party, in this case, the White House. … To the extent that the White House objected to the subpoena to Ms. Miers as a private citizen, therefore, its proper recourse – which would have been more than adequate to protect its own asserted rights – would have been to seek a court order, rather than unilaterally “directing” Ms. Miers to disobey a lawful subpoena herself. Id. at page 46.

* * *

[M]s. Miers was not being misled by a government entity into thinking she was acting lawfully, but instead she chose, with full knowledge of the possible consequences, to follow the White House’s flawed “directive.” As the entity which issued the subpoena to Ms. Miers, only the Committee was in a position to give her “reasonable reliance” that she could lawfully refuse to comply, but in fact the Committee did precisely the opposite and made clear that she was required to obey her subpoena. Id. at page 48. (emphasis in original)

* * *

As explained in the July 12 and July 19 rulings upheld by the Subcommittee on Commercial and Administrative Law, the refusal … of Ms. Miers to testify or even appear pursuant to subpoena [has] no proper legal basis. Id. at page 52. FN 281 See Clinton v. Jones, 520 U.S. 681, 703-06 (1997). As the Court noted in United States v. Bryan, 339 U.S. 323-331 (1950), “persons summoned as witnesses have certain minimum duties and obligations which as necessary concessions to the public interest in the orderly operation of legislative and judicial machinery. …We have often iterated the importance of this public duty, which every person within the jurisdiction of the Government is bound to perform when properly summoned.”

As a result of her refusal to appear before the Subcommittee pursuant to a lawful subpoena, the House Judiciary Committee approved a contempt of Congress citation against Ms. Miers. House Democrats Approve Contempt of Congress Citations Wednesday Against 2 Presidential Aides, Laurie Kellman, AP News, July 25, 2007. See also House Committee Approves Contempt Citation, Paul Kiel, TPMMuckraker.com, July 25, 2007. Ms. Miers failure to appear pursuant to subpoena and her receipt of a contempt of Congress citation violate her ethical obligations under the Texas Disciplinary Rules of Professional Conduct .

Chairman Conyers’ position has been upheld by United States District Judge John D. Bates in COMMITTEE ON THE JUDICIARY, U.S. HOUSE OF REPRESENTATIVES v. HARRIET MIERS, et al., Civil Action No. 08-0409 (JDB). In his Memorandum Opinion, Judge Bates introduced the position taken by Ms.Miers as unprecedented, is without any support in the case law and fallacious:

Indeed, the aspect of this lawsuit that is unprecedented is the notion that Ms. Miers is absolutely immune from compelled congressional process. The Supreme Court has reserved absolute immunity for very narrow circumstances, involving the President’s personal exposure to suits for money damages based on his official conduct or concerning matters of national security or foreign affairs. The Executive’s current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law. The fallacy of that claim was presaged in United States v. Nixon itself (id. at 706):

neither the doctrine of separation of powers, nor the need for confidentiality of highlevel communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial [or congressional] process under all circumstances.

Id. at p. 3.

In footnote 1 of his Opinion, Judge Bates’ states that “The Court will refer to the defendants in this action, and to the executive branch and the current administration generally, as “the Executive.” Id. at p. 2. Accordingly, each and every reference to the Executive is a reference to, inter alia, Mr. Miers.

Because Ms. Miers presented no legitimate claim for absolute immunity, Judge Bates rules that Ms. Miers must, in fact, appear pursuant to the validly issued subpoenas of the United States House and Senate Committees on the Judiciary:

Clear precedent and persuasive policy reasons confirm that the Executive cannot be the
judge of its own privilege and hence Ms. Miers is not entitled to absolute immunity from
compelled congressional process. Ms. Miers is not excused from compliance with the
Committee’s subpoena by virtue of a claim of executive privilege that may ultimately be  made.

Instead, she must appear before the Committee to provide testimony, and invoke executive
privilege where appropriate. [Footnote] 38 [is not included herein] And as the Supreme Court has directed, the judiciary remains the ultimate arbiter of an executive privilege claim, since it is the duty of the courts to declare what the law is. See United States v. Nixon, 418 U.S. at 703-05; see also Marbury v. Madison, 5 U.S. (1 Cranch) at 177.

Id. at p. 91.

In his analysis, Judge Bates provided an exhaustive review of the facts and then summarized the underlying facts in this matter:

The undisputed factual record, then, establishes the following. Notwithstanding a prolonged period of negotiation, [Footnote] 7[,] the parties reached a self-declared impasse with respect to the document production and testimony at issue here. Faced with that reality, the full House of Representatives voted to hold Ms. Miers and Mr. Bolten in contempt of Congress and certified the Contempt Report to the U.S. Attorney for the District of Columbia to pursue criminal enforcement of the contempt citations. The Attorney General then directed the U.S. Attorney not to proceed against Ms. Miers and Mr. Bolten. The Committee, then, filed this suit seeking civil enforcement of its subpoena authority by way of declaratory and injunctive relief.

[Footnote] 7 Mr. Fielding’s final letter to Chairman Conyers reveals that the Chairmen had “written ‘on eight previous occasions,’ three of which letters contain or incorporate specific proposals involving terms for a possible agreement.” See Pl.’s Mot. Ex. 34.

Id. at pp. 16-17.

Judge Bates also addresses Ms. Miers’ claim of absolute immunity, which was the basis for her refusal to even appear before the House and Senate Committees on the Judiciary:

The Executive maintains that absolute immunity shields Ms. Miers from compelled testimony before Congress. Although the exact reach of this proposed doctrine is not clear, the Executive insists that it applies only to “a very small cadre of senior advisors.” See Tr. at 96. The argument starts with the assertion that the President himself is absolutely immune from compelled congressional testimony. There is no case that stands for that exact proposition, but the Executive maintains that the conclusion flows logically from Nixon v. Fitzgerald, 457 U.S. 731 (1982), where the Supreme Court held that the President “is entitled to absolute immunity from damages liability predicated on his official acts.” Id. at 749. “Any such [congressional] power of compulsion over the President,” the Executive asserts, “would obviously threaten his independence and autonomy from Congress in violation of separation of powers principles.” See Defs.’ Reply at 40. The Executive then contends that “[those] same principles apply just as clearly to the President’s closest advisers.” Id. Because senior White House advisers “have no operational authority over government agencies . . . [t]heir sole function is to advise and assist the President in the exercise of his duties.” Id. at 41. Therefore, they must be regarded as the President’s “alter ego.” In a similar context, the Supreme Court has extended Speech or Debate Clause immunity to legislative aides who work closely with Members of Congress. See Gravel v. United States, 408 U.S. 606, 616-17 (1972). Accordingly, forcing close presidential advisors to testify before Congress would be tantamount to compelling the President himself to do so, a plainly untenable result in the Executive’s view. Indeed, as the Executive would have it, “[w]ere the President’s closest advisers subject to compelled testimony there would be no end to the demands that effectively could be placed upon the President himself.” See Defs.’ Reply at 43.

Unfortunately for the Executive, this line of argument has been virtually foreclosed by the
Supreme Court. In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the plaintiff sued “senior White
House aides” for civil damages arising out of the defendants’ official actions. Id. at 802. The
defendants argued that they were “entitled to a blanket protection of absolute immunity as an incident of their offices as Presidential aides.” Id. at 808. The Supreme Court rejected that
position. Notwithstanding the absolute immunity extended to legislators, judges, prosecutors, and the President himself, the Court emphasized that “[f]or executive officials in general, however, our cases make plain that qualified immunity represents the norm.” Id. at 807. Although there can be no doubt regarding “the importance to the President of loyal and efficient subordinates in executing his duties of office, . . . these factors, alone, [are] insufficient to justify absolute immunity.” Id. at 808-09 (discussing Butz v. Economou, 438 U.S. 478 (1978)).

Id. at pp. 79-80.

Judge Bates continues to decimate Ms. Miers’ claim of absolute immunity:

There is nothing left to the Executive’s primary argument in light of Harlow. This case, of course, does not involve national security or foreign policy, and the Executive does not invoke that mantra. The derivative, “alter ego” immunity that the Executive requests here due to Ms. Miers’s and Mr. Bolten’s close proximity to and association with the President has been explicitly and definitively rejected, and there is no basis for reaching a different conclusion here. Indeed, the Executive asks this Court to recognize precisely the type of blanket derivative absolute immunity that the Supreme Court declined to acknowledge in Harlow.

Id. at pp. 81-82.

Judge Bates also expressly pointed out that there is NO judicial precedent for Ms. Miers’ claims:

Thus, it would hardly be unprecedented for Ms. Miers to appear before Congress to testify and assert executive privilege where appropriate. Still, it is noteworthy that in an environment where there is no judicial support whatsoever for the Executive’s claim of absolute immunity, the historical record also does not reflect the wholesale compulsion by Congress of testimony from senior presidential advisors that the Executive fears. [Emphasis in original.]

Id. at pp. 83-84.

And that Ms. Miers’ claims are based solely on two (2) legal opinions issued by the Executive Branch itself:

Tellingly, the only authority that the Executive can muster in support of its absolute
immunity assertion are two OLC opinions authored by Attorney General Janet Reno and Principal Deputy Assistant Attorney General Steven Bradbury, respectively.

* * *

[T]he Court is not at all persuaded by the Reno and Bradbury opinions.

Id. at pp. 85-86.

Since Ms. Miers’ failure to appear pursuant to validly issued subpoenas is not supported by any colorable basis in law, her failure to appear is in violation of the Texas Rules of Professional Conduct. Accordingly, Ms. Miers’ conduct calls into question her fitness to practice law.

Supporting Links:

Conyers: Are Subpoenas Optional or Not?, Paul Kiel, TPMMuckraker.com, July 12, 2007

Memorandum to the Members of the Committee on the Judiciary regarding Full Committee Consideration of Report on the Refusal of Former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten to Comply with Subpoenas By the House Judiciary Committee, Rep. John C. Conyers, Jr., Chairman, July 24, 2007

House Democrats Approve Contempt of Congress Citations Wednesday Against 2 Presidential Aides, Laurie Kellman, AP News, July 25, 2007

House Committee Approves Contempt Citation, Paul Kiel, TPMMuckraker.com, July 25, 2007

Rules Violated:

Failure to Report Unlawful and Unethical Conduct of Texas Attorney Alberto Gonzales

Beginning in January 2001, Ms. Miers served as Assistant to the President and Staff Secretary for President George W. Bush. In 2003, she was appointed Deputy Chief of Staff for Policy. In November 2004, President Bush appointed her to the post of White House Counsel, the chief legal adviser for the Office of the President, succeeding Alberto Gonzales who had held that position during President Bush’s first term and who left that position to become Attorney General of the United States in February 2005.

In each of these positions, Ms. Miers worked closely with Mr. Gonzales, who, like Ms. Miers, is also a member of the Texas Bar. In fulfilling her duties to the President, or subsequent to her employment by the President, Ms. Miers acquired the requisite knowledge of conduct engaged in by Mr. Gonzales that raised, or should have raised, a substantial question as to Mr. Gonzales’ honesty, trustworthiness and fitness as a lawyer. However, Ms. Miers failed to inform the appropriate disciplinary authority as required by the Texas Disciplinary Rules of Professional Conduct. Specifically, Ms. Miers became aware of the following violations of the Texas Disciplinary Rules of Professional Conduct by Mr. Gonzales:

  • His March 2004 attempt, as then-White House Counsel, to coerce the execution of legal documents by then-Attorney General John Ashcroft while Mr. Ashcroft was in intensive care.
  • His false statements to Congress that there was no dissent in the Department of Justice regarding the intelligence program known as the terrorist surveillance program.
  • His attempt to improperly influence Monica Goodling to provide false statements to Congress.
  • His complicity in the violations of the Presidential Records Act by Karl Rove, J. Scott Jennings, Susan Ralston and other White House officials. In a deposition provided 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.” 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.
  • His false statements to Congress regarding abuses of the USA Patriot Act by the FBI. In his testimony to the Senate, Mr. Gonzales testified that the FBI had not abused its use of national security letters. However, Mr. Gonzales had, in fact, received at least half a dozen reports of legal or procedural violations 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.
  • His conflict of interest advising President Bush to shut down a Justice Department inquiry regarding the administration’s warrantless domestic eavesdropping program even though Mr. Gonzales learned that his own conduct would likely be a focus of the investigation.
  • His false statements to Congress regarding his intentions to appoint US Attorneys pursuant to the USA Patriot Act.
  • His false statements to Congress regarding the stated reasons for firing nine (9) US Attorneys even though Ms. Miers was intimately involved in the firing of the US Attorneys and knew his statements were false.

Supporting Links:

See Alberto Gonzales , Grievance Project, October 3, 2007.

Rules Violated:

Text of, and comments to, selected Rules of Professional Conduct violated by Harriet E. Miers:

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.

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.

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).

8.05 Jurisdiction

(a) A lawyer is subject to the disciplinary authority of this state, if admitted to practice in this state or if specially admitted by a court of this state for a particular proceeding. In addition to being answerable for his or her conduct occurring in this state, any such lawyer also may be disciplined in this state for conduct occurring in another jurisdiction or resulting in lawyer discipline in another jurisdiction, if it is professional misconduct under Rule 8.04.

(b) A lawyer admitted to practice in this state is also subject to the disciplinary authority of this state for:

(1) an advertisement in the public media that does not comply with these rules and that is broadcast or disseminated in another jurisdiction, even if the advertisement complies with the rules governing lawyer advertisements in that jurisdiction, if the broadcast or dissemination of the advertisement is intended to be received by prospective clients in this state and is intended to secure employment to be performed in this state; and

(2) a written solicitation communication that does not comply with these rules and that is mailed in another jurisdiction, even if the communication complies with the rules governing written solicitation communications by lawyers in that jurisdiction, if the communication is mailed to an addressee in this state or is intended to secure employment to be performed in this state.

Comment:

1. This Rule describes those lawyers who are subject to the disciplinary authority of this state. It includes all lawyers licensed to practice here as well as lawyers admitted specially for a particular proceeding. This Rule is not intended to have any effect on the powers of a court to punish lawyers for contempt or for other breaches of applicable rules of practice or procedure.

2. In modern practice lawyers licensed in Texas frequently act outside the territorial limits or judicial system of this state. In doing so, they remain subject to the governing authority of this state. If their activity in another jurisdiction is substantial and continuous, it may constitute the practice of law in that jurisdiction. See Rule 5.05.

3. If the rules of professional conduct of this state and that other jurisdiction differ, principles of conflict of laws may apply. Similar problems can arise when a lawyer is licensed to practice in more than one jurisdiction and these jurisdictions impose conflicting obligations. A related problem arises with respect to practice before a federal tribunal, where the general authority of the state to regulate the practice of law must be reconciled with such authority as federal tribunals may have to regulate practice before them. In such cases, this state will not impose discipline for conduct arising in connection with the practice of law in another jurisdiction or resulting in lawyer discipline in another jurisdiction unless that conduct constitutes professional misconduct under Rule 8.04.

4. Normally, discipline will not be imposed in this state for conduct occurring solely in another jurisdiction or judicial system and authorized by the rules of professional conduct applicable thereto even if that conduct would violate these Rules. If, however, the conduct is the solicitation of employment through the use of the public media or a written solicitation that is directed at a prospective client in Texas or is for employment to be performed in Texas, discipline will be imposed if the communication does not comply with Article Vll of these Rules. A lawyer admitted to practice in Texas cannot avoid the regulations of Article Vll by using the public media in another state or by mailing the written solicitation from another state. This is true without regard to whether the advertisement or solicitation complies with the laws or disciplinary rules of the other state from which it originates.

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  4. […] 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 […]

  5. […] 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. Elston and Esther Slater McDonald, who engage in […]

  6. […] Harriet E. Miers Posted on August 4, 2008 by E.M. I have updated the statement of facts alleging various violations by Harriet E. Miers of the Texas Rules of Professional Conduct with the recent Memorandum Opinion in COMMITTEE ON THE […]

  7. just imagine if harriet had joined the supreme court! the very thought makes me shudder.

  8. No doubt that would have been a disaster,but I don’t know how much actual difference there would be if you replaced either Roberts or Alito with Miers.

    The Supreme Court is, IMO, the most important issue in the upcoming Presidential election.

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

  10. […] of the applicable rules of professional responsibility, including Alberto Gonzales, Kyle Sampson, Harriet Miers, Lisa Murkowski, John Yoo, Mark Everett Fuller, Monica Marie Goodling, Thomas W. Hartmann and, now, […]

  11. […] 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, Thomas W. Hartmann and […]

  12. […] of the applicable rules of professional responsibility, including Alberto Gonzales, Kyle Sampson, Harriet Miers, Lisa Murkowski, John Yoo, Mark Everett Fuller, Monica Marie Goodling, Thomas W. Hartmann, Michael […]

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

  14. […] Jr., Chairman, dated July 24, 2007, are just as true today as they were when I first wrote about Harriet Miers back in October of 2007: Even more extraordinary than the executive privilege claims in this matter […]

  15. Harriett Miers is back in the news so I’m not surprised that someone from her firm stopped by again:

    Domain Name lockeliddell.com ? (Commercial)
    IP Address 64.83.86.# (Locke Liddell & Sapp LLP)
    ISP Locke Liddell & Sapp LLP
    Location
    Continent : North America
    Country : United States (Facts)
    State : Texas
    City : Houston
    Lat/Long : 29.7755, -95.4152 (Map)
    Language unknown
    Operating System Microsoft WinXP
    Browser Internet Explorer 7.0
    Mozilla/4.0 (compatible; MSIE 7.0; Windows NT 5.1; .NET CLR 1.1.4322; .NET CLR 2.0.50727; .NET CLR 3.0.04506.30; .NET CLR 3.0.04506.648; .NET CLR 3.5.21022; InfoPath.1)
    Javascript disabled
    Time of Visit Aug 12 2009 11:44:32 am
    Last Page View Aug 12 2009 11:44:32 am
    Visit Length 0 seconds
    Page Views 1
    Referring URL unknown
    Visit Entry Page http://grievanceproj…/08/harriet-e-miers/
    Visit Exit Page http://grievanceproj…/08/harriet-e-miers/
    Out Click
    Time Zone unknown
    Visitor’s Time Unknown
    Visit Number 13,924

  16. This is an interesting visitor considering that Ms. Miers appears to have an unlimited number of strikes:

    VISITOR ANALYSIS
    Referring Link No referring link
    Host Name
    IP Address 64.95.235.22
    Country United States
    Region New York
    City New York
    ISP Major League Baseball
    Returning Visits 0
    Visit Length 0 seconds
    VISITOR SYSTEM SPECS
    Browser MSIE 8.0
    Operating System Windows Vista
    Resolution Unknown
    Javascript Disabled
    Navigation Path
    Date Time WebPage
    September 15th 2009 04:51:18 PM No referring link
    grievanceproject.wordpress.com/2007/10/08/harriet-e-miers/

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