Leura Garrett Canary


Crossposted at Oxdown Gazette.

Personal Information: Leura Garrett Canary

  • Name: Hon. Leura Garrett Canary
  • Employment: United States Attorney for the Middle District of Alabama
  • Address: P. O. Box 197, Montgomery, AL 36101-0197
  • Phone: (334) 223-7280
  • Date Admitted: September 25, 1981
  • Law School: University of Alabama

Leura Garrett Canary was nominated by Pres. George W. Bush to be the United States Attorney for the Middle District of Alabama. Since assuming this position in September 2001, Mrs. Canary has failed to adhere to even the most basic tenets of professional conduct required of her by her membership in the Alabama State Bar, beginning with the Preamble to the Alabama Rules of Professional Conduct which states, in part, that

A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process. [Emphasis supplied.]

The following analysis establishes that Mrs. Canary has violated her obligations under the Alabama Rules of Professional Conduct by her continued participation in the prosecution of Gov. Don Siegelman after her supposed recusal from the matter and that her conduct raises a substantial question as to her honesty, trustworthiness and fitness to practice law. Specifically, Leura Garrett Canary violated the following Alabama Rules of Professional Conduct:

  1. RULE 1.16 DECLINING OR TERMINATING REPRESENTATION
  2. RULE 3.3 CANDOR TOWARD THE TRIBUNAL
  3. RULE 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL
  4. RULE 3.5 IMPARTIALITY AND DECORUM OF THE TRIBUNAL
  5. RULE 3.6 TRIAL PUBLICITY
  6. RULE 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR
  7. RULE 4.1 THRUTHFULNESS IN STATEMENTS TO OTHERS
  8. RULE 5.1 RESPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER
  9. RULE 5.4 PROFESSIONAL INDEPENDENCE OF A LAWYER
  10. RULE 8.3 REPORTING PROFESSIONAL MISCONDUCT
  11. RULE 8.4 MISCONDUCT

Statement of Facts

On November 7, 2008, Rep. John Conyers, as Chairman of the House Committee on the Judiciary, and Rep. Linda Sanchez, as Chair of the Subcommittee on Commercial and Administrative Law, sent a letter to Attorney General Michael Mukasey in which they succinctly set forth the facts under which Mrs. Canary – allegedly – recused herself from the prosecution of Gov. Don Siegelman:

Department of Justice records show that United States Attorney Leura Canary recused herself from the Siegelman case on May 16, 2002. According to the Acting United States Attorney responsible for the case, “In May 2002, very early in the investigation, and before any significant decisions in the case were made, U.S. Attorney Leura Canary completely recused herself from the Siegelman matter, in response to unfounded accusations that her husband’s Republican ties created a conflict of interest.” [Footnote] 15 Mr. Franklin further explained that “Ms. Canary had no involvement in the case, directly or indirectly, and made no decisions in regards to the investigation or prosecution after her recusal. Immediately following Ms. Canary’s recusal, appropriate steps were taken to ensure the integrity of the recusal, including establishing a ‘firewall’ and moving all documents relating to the investigation to an off-site location. [Footnote] 16 On October 5, 2007, Mr. Franklin stated again “[Leura Canary’s] recusal was scrupulously honored by me.” [Footnote] 17 These statements have been repeated many times and have been relied on by defenders of the Department’s handling of this politically-sensitive matter.

[Footnote] 15 July 18, 2007, Statement of Acting United States Attorney Louis Franklin, available at http://blog.al.com/bn/20007/07/middle_district_of_alabamas_re.html

[Footnote] 16 July 18, 2007, Statement of Acting United States Attorney Louis Franklin, available at http://blog.al.com/bn/20007/07/middle_district_of_alabamas_re.html

[Footnote] 17 October 5, 2007, Statement of Acting United States Attorney Louis Franklin, available at http://www.wsfa.com/global/story.asp?s+7176844&ClientType=Printable

On May 16, 2002, Mrs. Canary clearly and unequivocally declared that she had recused herself from the prosecution of Gov. Siegelman stating in this press release that:

As to any matters pertaining to any current investigation of state officials or matters of state government which may or may not be underway, the Department of Justice has advised me that no actual conflicts of interest exist. However, out of an abundance of caution, I have requested that I be recused to avoid any question about my impartiality.

It is of the utmost importance to me, as a United States Attorney, that the people in the Middle District of Alabama and throughout the State have confidence in the manner in which matters are handled by me and by the office I serve and that no one has a basis under which to question the integrity of any investigation undertaken by my office. To that end, the Department has assigned responsibility for the supervision of any investigation regarding state officials or matters of state government to First Assistant United States Attorney Charles R. Niven.

Scott Horton, a contributor to Harper’s Magazine and author of the weblog No Comment for Harper’s website, has been following the prosecution of Don Siegleman and has written extensively on the subject. In his article September 14, 2007 article The Remarkable ‘Recusal’ of Leura Canary, Prof. Horton identified two material misstatements that raise the question of Mrs. Canary’s honesty regarding her recusal from the case:

I question the honesty of Leura Canary’s statement. First, it makes the claim–continuously repeated–that Mrs. Canary took this step on her own initiative. In fact she took it because of the request that attorney Johnson filed with the Justice Department, which launched an independent look at the matter.

Second, Mrs. Canary says that the Justice Department told her that she was okay from a conflicts perspective. I put the question to two prominent legal ethicists: would the facts I presented require Mrs. Canary’s recusal from the investigation of Governor Siegelman? Answer: “this is not a borderline or close case. Under the facts you outline, Mrs. Canary violated the canons of ethics by undertaking and handling the investigation of Governor Siegelman for the period up to her recusal.” Do you believe that a Department of Justice Office of Professional Responsibility officer would have advised Mrs. Canary that there was “no actual conflict.” Answer: “The standard that applies is whether there would be an ‘appearance of impartiality,’ not ‘actual conflict,’ so the Canary statement misstates the rule. Nonetheless, here the situation passes far beyond ‘appearance of impartiality’ and reaches an actual conflict. The advice she suggests could not have been competently rendered. It would be very interesting to know who at Justice gave such advice.” …

As far back as September 2007 when he published his article, Prof. Horton questioned whether Mrs. Canary had recused herself in fact and not just in word, noting that Mrs. Canary’s statement that she recused herself is only the beginning of the discussion:

And third, the press statement says she recused herself. But did she?

The question then became follow-through. Career senior Justice Department officials tell me that when a U.S. Attorney recuses him- or herself, there is a standard procedure followed: a conflict of interest certification is prepared and submitted in the matter; a certificate of divestiture is prepared and submitted; “502 determinations” are prepared; there is also other ordinary documentation such as a formal appointment of an acting U.S. attorney to handle the matter, transmittal documentation and the like. The normal process, as I am told, is that a neighboring U.S. Attorney is appointed to handle the matter, usually with support of career professionals who would otherwise report to the recused U.S. Attorney.

I can find no evidence that any of these standard procedures were followed. Instead, according to public statements, a member of Mrs. Canary’s staff was appointed to handle the matter. In fact the person she designated was her principal prosecutor; that is, someone whose career and advancement was dependent directly upon her evaluations, not those of an intermediate staffer. When I reviewed this with a career senior Justice Department official I was told: “That’s very odd, and it violates the basic recusal rules. If the recused U.S. Attorney has appointed one of her staffers, without the supervision of another U.S. Attorney, then she has not really recused herself at all. The staffer operates in her office, under her apparent supervision, subject to her performance evaluations, and receiving her paychecks. The idea that the U.S. Attorney is recused and that the staffer is running the show would be a difficult sale to anyone with eyes and possessed of a brain.” Precisely. The ploy only works when the local media report it and don’t ask any questions or use their analytical faculties.

In September of 2007, the evidence that Mrs. Canary had not recused herself in fact from the prosecution that was available to Prof. Horton was limited to Mrs. Canary’s involvement in several press opportunities:

When charges were announced against Siegelman at a press conference convened in Montgomery, Noel Hillman traveled down to Montgomery to deliver the message (stating, ironically as it turns out, “Public Integrity does not do politics”), and there with him stood Leura Canary. Similarly, as the case proceeded, Leura Canary did not keep any distance from it. She gave interviews to the Los Angeles Times and to the Montgomery Advertiser about the case. Not the conduct of a ‘recused’ U.S. Attorney. [As of November, 17, 2008, linking to the Montgomery Advertiser from the link in Prof. Horton’s article returns a page that states that ‘The article requested can not be found!’]

However, as Rep. Conyers and Rep. Sanchez explain in their letter to Attorney General Michael Mukasey, documents – obtained by both Prof. Horton and Adam Zagorin – have surfaced that establish that Mrs. Canary did not, as a matter of fact, recuse herself from the prosecution of Gov. Siegelman:

Ms. [Tamarah] Grimes[, an employee of the United States Attorney for the Middle District of Alabama,] has provided several emails[*] casting serious doubts on these assertions, however. The most significant of these emails is a September 19, 2005, email from Ms. Canary to Acting United States Attorney Franklin, Assistant United States Attorneys Feaga and Perrine, First Assistant United States Attorney Patricia Watson (whose last name was Snyder at this time), and criminal legal assistant Debbie Shaw. This email was sent at a critical time in the Siegelman/Scrushy case – Mr. Siegelman had been indicted, although that fact had not been revealed to his attorneys, and the Government was preparing a superceding indictment that would be publicly revealed the following month.

In this email, Ms. Canary forwards an article regarding the Siegelman case and writes: “Ya’ll need to read because he refers to a ‘survey’ which allegedly shows that 67% of Alabamians believe the investigation of him to be politically motivated. (Perhaps grounds not to let him discuss court activities in the media?) He also admits to making ‘bad hires’ in his last administration.” [Footnote] 18

This email raises obvious questions about the degree to which Ms. Canary honored her recusal from this case. A recused United States Attorney should not be providing factual information such as relevant news clipping containing a defendant’s statements to the team working on the case under recusal. And this email does not just show Ms. Canary forwarding and article – it reflects her analyzing the article and highlighting certain facts. And most troubling of all it contains a litigation strategy recommendation – that the prosecution should seek to bar Mr. Siegelman from speaking to the media. We note too that it was sent only to members of the Siegelman/Scrushy prosecution team – it was not an office wide email that inadvertently reached people working on the case.

[Footnote] 18 September 19, 2005, email from Leura Canary to JB Perrine, Steve Feaga, Louis Franklin, Debbie Shaw and Patricia Snyder.

[*Portions of the images of the e-mails released by Ms. Grimes are printed below.]

Regarding Mrs. Canary’s advice that the prosecution seek a gag order against Gov. Siegelman, Adam Zagorin reported on November 14, 2007 at Time.com that the prosecution team did just that:

Prosecutors in the case seem to have followed Canary’s advice. A few months later they petitioned the court to prevent Siegelman from arguing that politics had any bearing on the case against him. After trial, they persuaded the judge to use Siegelman’s public statements about political bias — like the one Canary had flagged in her e-mail — as grounds for increasing his prison sentence. The judge’s action is now one target of next month’s appeal.

Writing at the Daily Beast, Prof. Horton characterized Mrs. Canary’s conduct in this manner:

Canary, attaching a Siegelman campaign missive to one email, noted that Siegelman claimed that the prosecution is politically motivated and that 67 percent of Alabamans agree with him. Canary suggested that her subordinates obtain a gag order against Siegelman to bar him from making any references to the political nature of the charges brought against him. The communication suggested that Canary’s motivation is, just as Siegelman alleges, political in nature. More significantly, it demonstrates that Canary continued to drive the case notwithstanding her “recusal.”

In fact, the prosecutors sought a gag order against Siegelman and persuaded the judge, a former member of the Executive Committee of the Alabama G.O.P., to ratchet Siegelman’s sentence upwards because he claimed he was a victim of a political prosecution led by Republicans. (Recent polling suggests that Alabamans believe by overwhelming margins that Siegelman was a victim of a political prosecution, and newspaper editorial boards across the state called for his release.)

In another email, Canary’s first assistant referred to Canary making staffing decisions surrounding the prosecution of the Siegelman case long after her “recusal.” These allegations are backed up by the fact that Canary repeatedly appeared at news conferences concerning the Siegelman prosecution and granted at least three press interviews to discuss it—all after she said she had removed herself from the case.

In their letter to Attorney General Michael Mukasey, Rep. Conyers and Rep. Sanchez continue to document Mrs. Canary’s unethical conduct:

Ms. Grimes has provided other documents to the Committee that bear on this issue. In one email, Ms. Canary forwards another another article to essentially the same group of recipients. [Footnote] 19 This too appears improper and again raises the question why a recused United States Attorney would be providing such information to the active prosecution team. Another email notes that Ms. Canary was consulted about the decision to add Ms. Grimes to the Siegelman/Scrushy team – referred to as the “big case” – and states that “Leura and Louis both liked the concept[“] and further reports that “Leura asked me to pass this information [regarding Ms. Grimes’ role on the case] on …[.]” [Footnote] 20 We appreciate that a United States Attorney who is recused from a particular matter will continue to play a role in the overall administration of the office, but question whether participating in detailed discussions about the staffing of the matter from which she has been recused is appropriate and whether messages or information from the recused United States Attorneys should be passed on to new members of the team.

In her July 2007 report to OPR, Ms. Grimes elaborated on this subject, stating that “Leura Canary kept up with every detail of the case through Debbie Shaw and Patricia Watson.” [Footnote] 21 Once again, if this statement is accurate, it raises serious concerns. It is difficult to imagine the reason for a recused United States Attorney to remain so involved in the day to day progress of the matter under recusal.

[Footnote] 19 September 27, 2005, email from Leura Canary to Steve Feaga, Louis Franklin, JB Perrine, and Patricia Snyder.

[Footnote] 20 April 6, 2005, email from Patricia Snyder to Steve Doyle

[Footnote] 21 July 30, 2007 Letter to H. Marshall Jarrett from Tamarah Grimes.

On November 21, 2008, Adam Nossiter at the New York Times reported that:

Yet in her complaint, the Justice Department employee, Tamarah T. Grimes, cited several instances suggesting Ms. Canary maintained a close watch on the case. Ms. Grimes said a legal aide in the office reported on Mr. Siegelman’s trial to Ms. Canary or her top deputy “every day, sometimes several times per day by telephone.” Once, she observed Ms. Canary “frantically pacing in the executive suite” after a courtroom blowup, “pleading with someone” to get on the phone to “tell Louis he has to control his temper.”

Ms. Grimes also disclosed an e-mail message written by Ms. Canary commenting on legal strategy in the case and suggesting to aides that Mr. Siegelman not be allowed to “comment on court activities in the media.” Ms. Grimes, who is also in a dispute with the department related to her accusations that the Siegelman prosecution team had harassed her, cited the affidavit of a former legal aide in the Montgomery office, Elizabeth Jane Crooks, who wrote that “the morning that the trial started, the U.S. attorney herself carried food and beverage over to the courthouse to support the ‘Trial Team.’ ”

Mr. Siegelman’s lawyers have reacted with anger to these contentions, saying they demonstrate that Ms. Canary never really took herself out of the case. “She was supposed to be recused precisely because her involvement would reek of political conflict of interest, yet she remained involved,” they wrote in a filing to the 11th Circuit court this week.

Mrs. Canary has denied any wrongdoing both personally and through her subordinates. In reviewing Mrs. Canary’s conduct, neither her nor Mr. Franklin’s statements that Mrs. Canary recused herself need not – and indeed must not – be accepted at face value. To the contrary, her denials of improper motives or conduct must be evaluated based on the totality of the circumstances. As provided in the adopted Terminology of the Alabama Rules of Professional Conduct, for Mrs. Canary to believe that her conduct was proper, she must have “actually supposed the fact in question to be true” (which belief “may be inferred from circumstances”) and for that belief to be reasonable requires “that the circumstances are such that the belief is reasonable.”

For example, in her May 16, 2002 press release, Mrs. Canary admitted that “it would not be appropriate for me to discuss any investigations that may or may not be under review in my office.” However, as Prof. Horton notes in his article The Remarkable ‘Recusal’ of Leura Canary, Mrs. Canary made this statement to the Los Angeles Times:

Leura Canary said that suggesting she exerted political influence over the case was “a ridiculous assertion” because it was handled by a career prosecutor, Franklin, in conjunction with the public integrity section of the Justice Department in Washington.

As noted above, Prof. Horton reported on several interactions between Mrs. Canary and the press regarding the prosecution of Gov. Siegelman after her alleged recusal:

When charges were announced against Siegelman at a press conference convened in Montgomery, Noel Hillman traveled down to Montgomery to deliver the message (stating, ironically as it turns out, “Public Integrity does not do politics”), and there with him stood Leura Canary. Similarly, as the case proceeded, Leura Canary did not keep any distance from it. She gave interviews to the Los Angeles Times and to the Montgomery Advertiser about the case. Not the conduct of a ‘recused’ U.S. Attorney. [As of November, 17, 2008, linking to the Montgomery Advertiser from the link in Prof. Horton’s article returns a page that states that ‘The article requested can not be found!’]

Mrs. Canary’s denials were echoed by Louis V. Franklin, Sr., Acting U.S. Attorney in the Siegelman/Scrushy Prosecution:

When the investigation first began, Leura Canary was not the U.S. Attorney for the MDAL. Initially, the investigation was brought to the attention of the Interim U.S. Attorney, Charles Niven, a career prosecutor in the U.S. Attorney’s Office. Niven had almost 25 years of experience as an Assistant U.S. Attorney in the office prior to his appointment as Interim U.S. Attorney upon U.S. Attorney Redding Pitt’s (currently attorney of record for Defendant Siegelman in this case) departure.

Ms. Canary became U.S. Attorney in September 2001. In May 2002, very early in the investigation, and before any significant decisions in the case were made, U.S. Attorney Leura Canary completely recused herself from the Siegelman matter, in response to unfounded accusations that her husband’s Republican ties created a conflict of interest. Although Department of Justice officials reviewed the matter and opined that no conflict, actual or apparent, existed, Canary recused herself anyway to avoid even an appearance of impropriety. I, Louis V. Franklin, Sr., was appointed Acting U.S. Attorney in the case after Charles Niven retired in January 2003. I have made all decisions on behalf of this office in the case since my appointment as Acting U.S. Attorney. U.S. Attorney Canary has had no involvement in the case, directly or indirectly, and has made no decisions in regards to the investigation or prosecution since her recusal. Immediately following Canary’s recusal, appropriate steps were taken to ensure that she had no involvement in the case. Specifically, a firewall was established and all documents relating to the investigation were moved to an off-site location. The off-site became the nerve center for most, if not all, work done on this case, including but not limited to the receipt, review, and discussion of evidence gathered during the investigation.

* * *

Armed with cooperation agreements from Bailey, Young and Kirsch, the investigation continued. In June 2004, a special grand jury was convened to further assist in the investigation. An indictment was returned under seal against Mr. Siegelman and ex-HealthSouth CEO Richard Scrushy on May 17, 2005. The first superseding indictment was filed and made public on October 26, 2005, charging Siegelman, Scrushy, Siegelman’s former Chief of Staff Paul Hamrick, and Siegelman’s Transportation Director Gary Mack Roberts. …

However, as specifically noted by Rep. Conyers and Rep. Sanchez in their letter to Attorney General Michael Mukasey, it was during this exact time frame specified by Acting U.S. Attorney Franklin in which Mrs. Canary clearly was not recused in fact from the prosecution of Gov. Siegelman:

The most significant of these emails is a September 19, 2005, email from Ms. Canary to Acting United States Attorney Franklin, Assistant United States Attorneys Feaga and Perrine, First Assistant United States Attorney Patricia Watson (whose last name was Snyder at this time), and criminal legal assistant Debbie Shaw. This email was sent at a critical time in the Siegelman/Scrushy case – Mr. Siegelman had been indicted, although that fact had not been revealed to his attorneys, and the Government was preparing a superceding indictment that would be publicly revealed the following month.

In this email, Ms. Canary forwards an article regarding the Siegelman case and writes: “Ya’ll need to read because he refers to a ‘survey’ which allegedly shows that 67% of Alabamians believe the investigation of him to be politically motivated. (Perhaps grounds not to let him discuss court activities in the media?) He also admits to making ‘bad hires’ in his last administration.” [Footnote] 18

This email raises obvious questions about the degree to which Ms. Canary honored her recusal from this case. A recused United States Attorney should not be providing factual information such as relevant news clipping containing a defendant’s statements to the team working on the case under recusal. And this email does not just show Ms. Canary forwarding and article – it reflects her analyzing the article and highlighting certain facts. And most troubling of all it contains a litigation strategy recommendation – that the prosecution should seek to bar Mr. Siegelman from speaking to the media. We note too that it was sent only to members of the Siegelman/Scrushy prosecution team – it was not an office wide email that inadvertently reached people working on the case.

In light of the evidence presented by Ms. Grimes and the contradictions between her actions and her contradictory, self-serving statements, Mrs. Canary’s denials are simply not believable. In short, “a lawyer of reasonable prudence and competence would ascertain the matter in question” to be improper, and, therefore, Mrs. Canary should have known that her conduct was improper even if she actually (and, in that case, quite incompetently) did not know her conduct was improper.

If the reputations of the Department of Justice and the Alabama State Bar are ever to be salvaged, Mrs. Canary must be investigated by the Alabama State Bar Office of Legal Counsel and referred to the Alabama State Bar Disciplinary Committee to answer for her violations of the Alabama Rules of Professional Conduct. Although the Alabama State Bar Office of Legal Counsel has the authority to begin an investigation on its own volition, a state bar system will not normally begin a formal investigation until it receives a formal complaint. A formal grievance complaint can’t be filed online, but anyone – whether a resident of Alabama or not or otherwise involved in this matter – can easily file a grievance against Mrs. Canary with the Alabama State Bar in just three simple steps:

  1. Print, complete and sign the official Alabama Complaint Against a Lawyer;
  2. Print and attach this page to the Complaint Form as the factual basis for the claim; and
  3. Mail the complaint to the address noted on the Complaint Form.

Rules Violated by Leura Garrett Canary:

  1. RULE 1.16 DECLINING OR TERMINATING REPRESENTATION
  2. RULE 3.3 CANDOR TOWARD THE TRIBUNAL
  3. RULE 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL
  4. RULE 3.5 IMPARTIALITY AND DECORUM OF THE TRIBUNAL
  5. RULE 3.6 TRIAL PUBLICITY
  6. RULE 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR
  7. RULE 4.1 THRUTHFULNESS IN STATEMENTS TO OTHERS
  8. RULE 5.1 RESPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER
  9. RULE 5.4 PROFESSIONAL INDEPENDENCE OF A LAWYER
  10. RULE 8.3 REPORTING PROFESSIONAL MISCONDUCT
  11. RULE 8.4 MISCONDUCT

*Portions of the images of the e-mails released by Ms. Grimes. The complete images of the e-mails can be found here.

September 19, 2005 e-mail from Leura Garrett Canary:

Image

September 25, 2005 e-mail from Leura Garrett Canary:

Image

April 6, 2005 e-mail from Patricia Snyder to Stephen Doyle:

Image

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h/ts: Legal Schnauzer, WriteChic Press, at-Largely and capt.

Thanks are also due to Scott Horton for all his contributions to reporting on the Siegelman prosecution.

RULE 1.16 DECLINING OR TERMINATING REPRESENTATION

(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client, if:

(1) the representation will result in violation of the Rules of Professional Conduct or other law;

(2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or

(3) the lawyer is discharged.

(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:

(1) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;

(2) the client has used the lawyer’s services to perpetrate a crime or fraud;

(3) the client insists upon pursuing an objective that the lawyer considers repugnant or imprudent;

(4) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

(5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or

(6) other good cause for withdrawal exists.

(c) When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.

RULE 3.3 CANDOR TOWARD THE TRIBUNAL

(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal;

(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; or

(3) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.

(d) In an ex parte proceeding other than a grand jury proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.

RULE 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL

A lawyer shall not:

(a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; or

(d) request a person other than a client to refrain from voluntarily giving relevant information to another party, unless:

(1) the person is a relative or an employee or other agent of a client and the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information;

(2) the person may be required by law to refrain from disclosing the information; or

(3) the information pertains to covert law enforcement investigations in process, such as the use of undercover law enforcement agents.

RULE 3.5 IMPARTIALITY AND DECORUM OF THE TRIBUNAL

A lawyer shall not:

(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;

(b) communicate ex parte with such a person except as permitted by law; or

(c) engage in conduct intended to disrupt a tribunal.

RULE 3.6 TRIAL PUBLICITY

(a) A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.

(b) A statement referred to in paragraph (a) ordinarily is likely to have such an effect when it refers to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration, and the statement relates to:

(1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness;

(2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person’s refusal or failure to make a statement;

(3) the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented;

(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration;

(5) information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial trial; or

(6) the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.

(c) Notwithstanding paragraphs (a) and (b)(1-5), a lawyer involved in the investigation or litigation of a matter may state without elaboration:

(1) the general nature of the claim or defense;

(2) the information contained in a public record;

(3) that an investigation of the matter is in progress, including the general scope of the investigation, the offense or claim or defense involved and, except when prohibited by law, the identity of the persons involved;

(4) the scheduling or result of any step in litigation;

(5) a request for assistance in obtaining evidence and information necessary thereto;

(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and

(7) in a criminal case:

(i) the identity, residence, occupation and family status of the accused;

(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;

(iii) the fact, time and place of arrest; and

(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.

RULE 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR

(1) The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;

(d) not willfully fail to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;

(e) exercise reasonable care to prevent anyone under the control or direct supervision of the prosecutor from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6, and shall not cause or influence anyone to make a statement that the prosecutor would be prohibited from making under Rule 3.6; and

(2) The prosecutor shall represent the government and shall be subject to these Rules as is any other lawyer, except:

(a) notwithstanding Rules 5.3 and 8.4, the prosecutor, through orders, directions, advice and encouragement, may cause other agencies and offices of government, and may cause non-lawyers employed or retained by or associated with the prosecutor, to engage in any action that is not prohibited by law, subject to the special responsibilities of the prosecutor established in (1) above; and

(b) to the extent an action of the government is not prohibited by law but would violate these Rules if done by a lawyer, the prosecutor (1) may have limited participation in the action, as provided in (2)(a) above, but (2) shall not personally act in violation of these Rules.

RULE 4.1 THRUTHFULNESS 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 assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

RULE 5.1 RESPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER

(a) A partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.

(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.

(c) A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if:

(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

RULE 5.4 PROFESSIONAL INDEPENDENCE OF A LAWYER

(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:

(1) an agreement by a lawyer with the lawyer’s firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer’s death, to the lawyer’s estate or to one or more specified persons;

(2) a lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation which fairly represents the services rendered by the deceased lawyer; and

(3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement.

(b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.

(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.

(d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:

(1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;

(2) a nonlawyer is a corporate director or officer thereof; or

(3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.

RULE 8.3 REPORTING PROFESSIONAL MISCONDUCT

(a) A lawyer possessing unprivileged knowledge of a violation of Rule 8.4 shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.

(b) A lawyer possessing unprivileged knowledge or evidence concerning another lawyer or a judge shall reveal fully such knowledge or evidence upon proper request.

(c) A lawyer who is on the Committee on Impaired Lawyers or on the ALA-Pals Committee or who is a member of any committee or sub-committee of the Bar designed to assist lawyers with substance abuse problems shall not be under any obligation to disclose any knowledge or evidence acquired from any other person (including judges and lawyers) during communications made by that other person for the purpose of seeking help of the sort the lawyer’s committee was intended to give. Any statement made by either party during such communications shall be privileged, and no claims or disciplinary action based on the lawyer’s failure to disclose the knowledge or evidence acquired during such communications may be instituted.

(d) This rule does not require disclosure of information otherwise protected by Rule 1.6.

RULE 8.4 MISCONDUCT

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

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

(d) engage in conduct that is prejudicial to the administration of justice;

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

(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable Canons of Judicial Ethics or other law; or

(g) engage in any other conduct that adversely reflects on his fitness to practice law.

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10 Responses

  1. Excellent! I’ve been waiting to read this. Just 6 more days until Siegelman gets his day in court. I feel confident the Middle District’s and Judge Fuller’s kangaroo court is known in Atlanta.

  2. Thanks, writechic. I, too, am looking forward to the court’s decision. Note that the appellate courts’ decisions often take weeks or months before they are made and released, so don’t expect a decision after the oral arguments.

  3. Too big a Christmas present to wish for, eh? I didn’t expect Siegelman’s sudden release from prison, and that was a pleasant surprise. But gotcha…hope for the best, expect the courts to move like molasses in January. :-)

  4. Siegelman’s release by the 11th Circuit was a pleasant surprise, but it was – to my knowledge – unprecedented. Another possibility is a result like Georgina Thompson achieved in Wisconsin. The appellate court there didn’t overturn the conviction and remand for a new trial, which is the typical result when a conviction is overturned, but actually ruled Ms. Thompson to be innocent of the charges and ordered her release from prison immediately following the oral arguments. It’s possible that something similar could also happen in this case. Overall, not a likely result, but with the history of the Bush administration, it’s possible.

  5. […] Leura Garrett Canary […]

  6. […] to the Siegelman Legal Defense Fund can be made here.   Also,  legal grievance has been prepared to file against U.S. Attorney Leura Canary. Possibly related posts: (automatically […]

  7. […] to the Siegelman Legal Defense Fund can be made here.   Also, a  legal grievance has been prepared to file against U.S. Attorney Leura Canary. Possibly related posts: (automatically […]

  8. […] Leura Garrett Canary […]

  9. Excellant!!! Looks like all of the Justice Dept. in Alabama needs investigating from top to bottom!!!!

    • The way the Obama DoJ is responding to many of the Bush admin’s policies, it looks like the the investigation should also include Eric Holder.

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