For the Bush Administration attorney, the truth still waits

In her article appearing in the February 2008 edition of the ABA Journal, Eileen Libby addresses the issue of When the Truth Can Wait. It should come as no surprise that the examples and case law that Ms. Libby provides and the conclusions she draws do not come to the aid of former Attorney General Alberto Gonzales, Kyle D. Sampson or many of the other Bush Administration attorneys that lie to Congress.

In discussing a case in which an attorney misrepresented that he was ‘either a chiropractor or an M.D. interested in working for the company,’ Ms. Libby writes (emphasis mine):

But the lawyer—Daniel J. Gatti, a prominent per­sonal injury lawyer in Salem and founding partner of Gatti, Gatti, Maier, Sayer, Thayer & Associates—was slapped with a disciplinary complaint. The grounds were that his phone calls violated various provisions of the Oregon Code of Professional Responsibility prohibiting lawyers from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, and from knowingly making false statements of law or fact while representing clients. After a disciplinary panel of the Oregon State Bar ruled that Gatti had violated the ethics rules (but that the bar was estopped from prosecuting him), the case went to the state supreme court.

Ruling in In re Gatti, 8 P.3d 966 (2000), the Oregon Su­preme Court affirmed that Gatti had violated the state ethics rules and sanctioned him with a public reprimand.

In doing so, the court re­jected arguments from Gatti and a number of amici in the case—primarily government pros­ecutors and consumer ad­vocates—that an exception to the rules should be recognized in conjunction with investigations into some suspected illegal activities.

Instead, the court held that, since the ethics rules are binding on all members of the bar, there was no basis for recognizing an exception that would allow any lawyer—government or private—to engage in dishonesty, fraud, deceit, misrepresentation or false statements.

The ruling caused an uproar. In the aftermath of Gatti, government lawyers began to question whether they could advise police during sting operations. Law­yers for civil rights organizations did not know whether they could use “testers” to ferret out housing and employment discrimination, and intellectual property lawyers were uncertain whether they were prohibited from using undercover investigations to develop information about the theft of client trade secrets.

Eventually, the Oregon Supreme Court amended the state ethics rules to permit a lawyer to advise and super­vise people who engage in deceit or misrepresentation in the conduct of investigations of violations of civil law, criminal law or constitutional rights if the lawyer “in good faith believes there is a reasonable possibility that unlawful activity has taken place, is taking place or will take place in the foreseeable future.”

But it’s unclear whether the amendments resolved the issue. Sylvia E. Stevens, the Oregon State Bar’s general counsel, says she continues to get questions about the permissible use of undercover investigations, especially from intellectual property lawyers. “It’s hard to know what the rule’s boundaries are,” she says.

It’s a dilemma that reaches beyond Oregon. In re Pautler, 47 P.3d 1175 (2002), involved a Colorado district attorney who impersonated a public defender as a ruse to get a murderer-rapist to surrender to police. The Colo­­rado Supreme Court was unswayed. Finding that there is no “imminent public harm exception” to the ethics principle that a lawyer may not engage in deceptive conduct, the court suspended the lawyer for three months.

Noting other instances in which courts and ethics panels have ruled that at least some misrepresentation by an attorney is permissible, such as ‘misrepresentations to uncover evidence of violations of a court order…’ and deception used by housing discrimination testers to defeat racial discrimination , Ms. Libby concludes (emphasis mine):

A key factor appears to be whether a lawyer engaged in some form of deceptive conduct in pursuit of a legitimate public interest, either through a government investigation or a civil legal action.

I don’t think lying to cover your involvement with illegal wiretapping, politicizing the Department of Justice, including the US Attorney firings, the prosecutions of Georgia Thompson and Don Siegelman, etc. If you’ve read this far, you already know the story.

Anyone can file a grievance against Alberto Gonzales and Kyle D. Sampson (no matter the state in which you reside).

Eileen Libby is associate ethics counsel for the ABA Center for Professional Responsibility. I’m an irked attorney.

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