Virginia lawyers file grievance against Monica Marie Goodling

As reported by Frank Green in the Richmond Times Dispatch (h/t Debra Cassens Weiss at the ABA Journal via Matt Berman at TPMMuckaker ) on September 16, 2008, attorney William R. Wilder prepared a grievance complaint against Monica Marie Goodling and he and several other attorneys filed the complaint with the Virginia Bar:

Monica Goodling resigned as the department’s liaison to the White House last year. A Justice Department investigation recently concluded that she violated civil-service law and department policy by considering political affiliations in hiring decisions.

Lawyer William R. Wilder, who drafted the complaint signed by a dozen other lawyers, said yesterday he was concerned about Goodling’s conduct and that she has apparently not been charged with a crime or disciplined elsewhere.

The Sept. 8 letter to the state bar alleges that Goodling violated at least two rules of professional conduct and asks that the state bar start a disciplinary investigation.

I sent this e-mail to Mr. Wilder thanking him for preparing and filing the complaint, advising him of the complaints I prepared against Ms. Goodling as well as Michael J. Elston, a fellow member of the Virginia Bar and requesting to discuss these matters with him. I also copied Ms. Goodling’s attorney, John M. Dowd , Esq.

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E-mail to William R. Wilder

William R. Wilder, Esq.
Baptiste & Wilder, P.C.

Mr. Wilder,

Thank you for preparing the complaint against Monica Marie Goodling and filing it with the Virginia Bar. Legal ‘professionals’ of the likes of Ms. Goodling have severely damaged the reputation and effectiveness of our legal system. I believe that the rehabilitation of the standing of our profession will require that attorneys like yourself file complaints regarding these unethical actions with the appropriate bar associations.

To encourage the filing of complaints like yours, I started The Grievance Project on October 1, 2007, nearly one (1) year ago, to provide both the resources any person needs to file a grievance against any attorney in any state as well as to prepare and encourage the filing of grievance complaints against deserving attorneys in the service of the federal government. For example, I prepared this complaint against Ms. Goodling last month. I would encourage you to review the complaint and, if you wish, to use it to supplement the complaint you filed.

Additionally, I have prepared a complaint against Michael J. Elston who is also a member of the Virginia Bar to supplement the complaint that CREW has filed against Mr. Elston because their complaint did not include allegations of his involvement in the US Attorney firing scandal. I would also encourage you to review and consider filing my complaint against Mr. Elston to supplement the CREW complaint. If you are interested, I would like to further discuss these matters with you.


E.M.

cc: John M. Dowd, Esq., attorney for Monica Marie Goodling, Akin Gump Strauss Hauer & Feld LLP
clerk@vsb.org

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E-mail to Michael J. Elston

Michael J. Elston
McGuire Woods, LLP
Washington Square, 1050 Connecticut Avenue, N.W., Suite 1200
Washington, District of Columbia 20036-5317
Telephone: 202-857-1700
Fax: 202-857-1737
melston@mcguirewoods.com

Dear Mr. Elston,

I have been researching the conduct of various attorneys in the service of the government of the United States, whether that conduct is a violation of the rules of professional conduct with which each such attorney must comply and authoring factual allegations of 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, Thomas W. Hartmann and, now, yourself. In addition to the allegations in the complaint recently filed against you in Virginia by CREW, your conduct in the firing of the United States Attorneys also violated several of the rules of professional conduct of the Illinois, Kansas, Missouri and Virginia Bars. These actions also raise a substantial question as to your honesty, trustworthiness and fitness as a lawyer.

I’m interested in your response to the criticisms that your conduct in your handling of both the firing of the United States Attorneys and hiring practices at DoJ violated your ethical obligations as a member of the Illinois, Kansas, Missouri and Virginia Bars.

E.M./The Grievance Project

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Some good news?

In his 1,000th column at White House Watch, Dan Froomkin quotes from Washington Post Staff Writer Carrie Johnson’s article that the Department of Justice Office of Professional Responsibility notified unspecified bar associations of the findings of wrongdoing in An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General:

Separately, an official in the Justice Department Office of Professional Responsibility said the unit has notified bar associations of its findings against five lawyers singled out in reports thus far.

The elation I initially felt reading the portion of Ms. Johnson’s article that Mr. Froomkin excerpted was tempered when I read the complete paragraph:

Separately, an official in the Justice Department Office of Professional Responsibility said the unit has notified bar associations of its findings against five lawyers singled out in reports thus far. The bar groups could initiate their own disciplinary proceedings against the lawyers, who include former Justice Department White House liaison Monica M. Goodling; former attorney general chief of staff D. Kyle Sampson; and former deputy attorney general chief of staff Michael D. Elston. Two lower-ranking officials, Esther Slater McDonald and John Nowacki, also were cited in the previous reports and their bar associations were notified, the official said. (Emphasis supplied.)

First, either Ms. Johnson did not report or her source did not specify which bar associations that OPR notified of the various allegations. She also didn’t specify whether each bar association in which these attorneys are admitted was notified of the findings. For example, Michael J. Elston , a partner at McGuireWoods LLP , is a member of the Illinois, Kansas, Missouri and Virginia Bar Associations. Were each of these bar associations ‘notified’ of Mr. Elston’s conduct?

Second, and more importantly, OPR did not file grievance complaints against any of these five (5) attorneys. As reported by Ms. Johnson, OPR only “notified bar associations of its findings.” This is a distinction with a difference: mere ‘notification’ does not initiate a grievance review process. The effect of OPR’s notification, as Ms. Johnson notes, is that the bar associations “could initiate their own disciplinary proceedings.” This is no different than if a bar association employee had simply learned about An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General online or in a newspaper because, just as with the OPR notification, that bar association also “could initiate their own disciplinary proceedings.” So, unless and until one of these bar associations actually initiates a grievance review, OPR’s ‘notification’ has done nothing more than provide some positive press.

Second, either Ms. Johnson did not report or her source did not specify which bar associations OPR notified of the various allegations and whether each bar association in which one of these attorneys is admitted was notified of the findings. For example, Michael J. Elston , a partner at McGuireWoods LLP , is a member of the Illinois, Kansas, Missouri and Virginia Bar Associations. Were each of these bar associations ‘notified’ of Mr. Elston’s conduct?

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Had enough yet?

The Legal Schnauzer shares a letter he recently received. In his post, Message From a Political Prisoner, he describes the receipt of the letter as “a profound experience recently, something I never dreamed would happen to me as a U.S. citizen.” He explains:

My letter was from Wes Teel, a former state judge in Mississippi who is in federal prison in Atlanta after being convicted in the Paul Minor case. Wes and I have never met; we’ve never even talked on the phone. But we got acquainted via e-mail when I began to write about the Minor case last September.

Wes and his codefendants, fellow state judge John Whitfield and well-know plaintiff’s attorney Paul Minor, had been convicted, and Wes was looking at reporting to federal prison in December 2007.

In our e-mail exchanges, I found Wes to be a man of keen intellect, common sense, and good humor–even in the face of going to prison for a crime he did not commit. I came to consider Wes a friend, and I shared his pain when he had a heart attack not long after reporting to federal prison. I shared his concerns about his wife, Myrna, who has multiple sclerosis and needed care while her husband was eight hours away in federal prison. I know he worried about his grandchildren and what they would grow up to think of a country that could imprison their grandfather simply for doing his job as a state judge.

On the surface, Wes and I might seem like unlikely friends. My blog started only because of the wrongdoing I had witnessed from lawyers and judges in Alabama state courts. Corrupt lawyers and judges have brought my wife and me to the edge of ruin–and here was Wes, a lawyer and former judge who was charged with being corrupt himself.

But here is one of many lessons I’ve learned from my Legal Schnauzer journey: Just because you’ve had a bad experience with someone in a certain profession, don’t assume that everyone in that profession is a bad actor.

After studying the Minor case at length, I realized that Wes Teel and John Whitfield were honest judges. They ruled for Paul Minor’s clients because that’s what the facts and the law required them to do. And I realized that, based on the evidence I had seen, Paul Minor was an honest lawyer. Certainly in the cases the government had used to build its prosecution, Minor acted properly, and his client prevailed because they should have prevailed.

The Minor case taught me that not even all Republican judges are corrupt. Another codefendant was Oliver Diaz, a justice on the Mississippi Supreme Court who was tried and acquitted twice. And Diaz is a Republican.

I realized that the bad guys in the Minor case were not lawyers, judges, or even Republicans. No, it is that certain breed of Republican that has been infected by a virus that seems to have started with George W. Bush and Karl Rove and wound up sickening our entire justice system.

Wes Teel is a victim of that justice system. His letter made me sad, angry, and ultimately, determined:

Please go to the full post to read more excerpts of Mr. Teel’s letter, but contemplate this excerpt which, as noted by the Legal Schnauzer, answers the question:

What does it mean to be a political prisoner in the United States?

Due to the conviction, unless it is overturned, I am essentially no longer a citizen. I can’t vote, possess a firearm, hold a bond, run for public office, or ever practice law again. Despite all of this, I have a vested stake in the success of our Republic. I want my grandchildren to grow up and be proud of our constitution and our government. I pray that change will one day come, and my precious grandchildren can come to enjoy the freedoms instituted by our Founding Fathers and paid for by the blood and sacrifice of many patriots.

Had enough yet to file a grievance?

If not, there’s more. Juxtapose the politicized prosecutions of Wes Teel, John Whitfeld, Paul Minor, Oscar Diaz, Don Siegelman, Georgia Thompson and Dr. Cyril Wecht with the politicized refusal by Michael Mukasey to prosecute Michael Elston, Kyle D. Sampson and Monica Marie Goodling. Scott Horton of Harper’s Magazine has named this selective failure to prosecute The Mukasey Doctrine and describes it like this:

Today [Attorney General Michael Mukasey] addressed the annual convention of the American Bar Association, and expanded upon what may be known to future generations as the “Mukasey Doctrine.” This doctrine holds that political appointees in the Justice Department who breach the public trust by using their positions for partisan political purposes face no punishment for their crimes. In the Mukasey view, this is all simple political gamesmanship—“boys will be boys”—and sufficient accountability is provided by exposing their games to the public limelight.

After reviewing in the briefest terms the recent internal Justice Department probe into the politicization of the hiring process in the honors program, with respect to immigration judges and in other areas, here’s what Mukasey has to say:

The conduct described in those reports is disturbing. The mission of the Justice Department is the evenhanded application of the Constitution and the laws enacted under it. That mission has to start with the evenhanded application of the laws within our own Department. Some people at the Department deviated from that strict standard, and the institution failed to stop them.

I want to stress that last point because there is no denying it: the system failed. The active wrong-doing detailed in the two joint reports was not systemic in that only a few people were directly implicated in it. But the failure was systemic in that the system–the institution–failed to check the behavior of those who did wrong. There was a failure of supervision by senior officials in the Department. And there was a failure on the part of some employees to cry foul when they were aware, or should have been aware, of problems.

Note how Mukasey plays the entire affair down and uses the traditional language of the criminal defendant–for him it was a “system failure.” His language is passive: things evidently just happened. But in fact a closer read of the Inspector General’s report shows that the figures involved and the schemes adopted had a clear provenance in the White House, and specifically in the warren of Karl Rove. The actors under investigation, Kyle Sampson and Monica Goodling, had come with Alberto Gonzales from the White House. They benefited from an extraordinary delegation of authority from Gonzales that allowed them, two thirty-somethings with little experience, to exercise the authority of the attorney general in the hiring and firing process. This didn’t “just happen.” It was the result of a careful plan for partisan entrenchment at Justice—consciously pursued in defiance of the law. A serious investigation would have focused on the senior figures responsible for this program. So what is the penalty for such a systematic violation of the law? Well, according to Mukasey, there isn’t one. Those involved have already suffered enough. Yes, they suffer because their misdeeds are now known.

Their misconduct has now been laid bare by the Justice Department for all to see.

* * *

Mukasey insists that the process of partisan entrenchment has been checked following his arrival.

* * *

The message that Mukasey is sending seems to be this: he will refuse to appoint a special prosecutor to look into the matter, whatever the inspector general suggests. In the Mukasey view, it will be enough punishment for the truth to come out.

Had enough yet? Ready to file a grievance?

From Dana Jill Simpson by Glynn Wilson of The Locust Fork Journal spoke to Dana Jill Simpson, who explains why we need to continue this fight:

After hearing about the speech and reading the stories about it, North Alabama attorney Jill Simpson said in a statement that Mukasey is a “disgrace to our country” and those who really pursue justice.

She called on President George W. Bush to restore the rule of law and fire Mukasey.

“He is showing a complete lack of respect for the rule of law by not charging individuals who were part of the United States Justice Department that broke the law,” she said. “He is creating a class of individuals that are above the law in this country and that is wrong. They should be tried for the crimes they committed, but Mr. Mukasey told the ABA they are going to get off Scott free.”

“These Doj employees broke the law it doesn’t matter where they work, ignorance to the law is no excuse, plus the evidence suggests these folks knew what they were doing and broke the law anyway. They should be tried and, if convicted, punished for their crimes,” she said.

Or at least disbarred. It’s time to file grievances against these attorneys.

Updated August 13, 2008 to fix title.

Updated August 15, 2008: More on Wes Teel here.

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Monica Marie Goodling

Personal Information:

  • Name: Monica Marie Goodling
  • Bar: Virginia

    Bar Information: Virginia

    • ID No.: N/A
    • Status: Active (presumed)
    • Registered Address: None listed.
    • Registered Phone: None listed.
    • Bar: Virginia
      • No Certification for Fiscal Year, per Virginia State Bar’s Attorneys Without Malpractice database which “includes the names of lawyers who have certified that they represent clients drawn from the public and do not have malpractice insurance.” I have requested the status of Ms. Goodling’s malpractice coverage status from the Virginia Bar membership records and will update this post upon receipt of any information.
      • No result from search of Member Directory database, but inclusion in this database is optional. According to Alicia A. Parker, Sr. Staff Assistant, Virginia State Bar membership records: “Monica Marie Goodling is an active member of the Virginia State Bar in good standing with no record of public discipline.”
      • As noted below, the Virginia State Bar Disciplined Attorneys database is not currently available (last checked July 29, 2008). According to Lily M. Norman, Assistant Clerk, Virginia State Bar Clerk: “A record check on the above attorney has revealed no public discipline!”

    Grievance Information: Virginia

    Grievance Information: Washington, D.C.

    File a grievance against Ms. Goodling

    1. Print, complete and sign the official Complaint Form for Virginia (or .pdf );
    2. Print and attach this page to the Complaint Form; and
    3. Mail the complaint to the address noted on the Complaint Form.

    The Preamble to the Virginia Rules of Professional Conduct provides, 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.

    * * *

    The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts.

    * * *

    The legal profession’s relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.

    Although testifying that she ‘may have crossed the line’ in violating civil service rules, Ms. Goodling has denied engaging in criminal conduct. Her denial, however, must be evaluated based on the totality of the circumstances, as defined in the Virginia Rules of Professional Conduct (.pdf):

    “Belief” or “believes” denotes that the person involved actually supposed the fact in question to be true. A person’s belief may be inferred from circumstances.

    * * *

    “Fraud” or “fraudulent” denotes conduct having a purpose to deceive and not merely negligent misrepresentation or failure to apprise another of relevant information.

    “Knowingly,” “known” or “knows” denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.

    * * *

    “Reasonable” or “reasonably” when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer.

    “Reasonable belief” or “reasonably believes” when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.

    “Reasonably should know” when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question.

    * * *

    “Substantial” when used in reference to degree or extent denotes a material matter of clear and weighty importance.

    Specifically, Ms. Goodling’s conduct violated the following the following Virginia Rules of Professional Conduct (.pdf) :

    • Rule 1.2. Scope of Representation
    • Rule 1.7. Conflict of Interest: General Rule
    • Rule 1.16. Declining or Terminating Representation
    • Rule 2.1. Advisor
    • Rule 3.4. Fairness to Opposing Party and Counsel
    • Rule 4.1. Truthfulness in Statements to Others
    • Rule 4.4. Respect for Rights of Third Persons
    • Rule 5.4. Professional Independence of a Lawyer
    • Rule 8.2. Judicial and Legal Officials
    • Rule 8.4. Misconduct
    • Rule 8.5. Disciplinary Authority; Choice of Law

    Allegation: Monica Goodling engaged in conduct that was a violation of federal laws that prohibit the consideration of political, sexual orientation and other impermissible criteria in making hiring decisions while employed by the Department of Justice.

    As confirmed by the United States Department of Justice Offices of Professional Responsibility and Office of the Inspector Generals in their report, An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General:

    The evidence demonstrated that Goodling violated Department policy and federal law, and committed misconduct, by considering political or ideological affiliations in the appointment of IJs and BIA members. Goodling admitted in her congressional testimony that she took political considerations into account” in IJ and BIA hiring. She stated that Sampson had told her that IJ hiring was not subject to civil service laws, and that she “assumed” those laws did not apply to BIA ember hiring. The evidence showed that she used political considerations in assessing candidates for both IJ and BIA positions.

    As detailed above, our investigation found that she solicited and received résumés for IJ and BIA candidates from the White House, from Republican members of Congress, the Republican National Lawyers Association, the Federalist Society, and from individuals with Republican
    Party affiliations. We found no evidence that she solicited candidates from any sources she thought had Democratic affiliations.

    Goodling also admitted in her congressional testimony that she researched Internet sites to learn whether candidates for IJ positions had made financial contributions to political parties. She admitted further that she conducted computer searches on such candidates. Evidence from our investigation revealed that she used the Nexis search string she had received from Williams to conduct research on IJ candidates. Both Angela Williamson and the OIPL employee who briefly assisted Goodling in late 2006 testified to conducting such searches, and the December 5, 2006 e-mail from Goodling to the OIPL employee contains the entire Williams search string, with a few additional terms added by Goodling. We also found documents that were obtained through the search string, which bore markings showing that the search string had been used. Furthermore, we found that Goodling ran the search string on candidates who had applied in response to the public announcements and whose résumés were forwarded in packets by EOIR.

    We also found several instances in which candidates for IJ or BIA positions were asked to fill out the White House PPO form, which sought information about the candidates’ political party affiliation and about their activities to support the Bush/Cheney campaigns.

    Goodling asserted that she had been advised by Sampson that it was appropriate to take political factors into account in hiring IJs. Even assuming Goodling received this advice, her conduct showed that she knew that political factors could not be considered in hiring for career IJ positions. First, she told several IJ or BIA candidates that they should not have been asked to complete the White House PPO form that sought information about political affiliation and voting history. Despite that knowledge, Goodling conducted research on IJ candidates to learn the same kind of information covered by the PPO forms. Second, Goodling’s claim that she believed it was appropriate to use political considerations in selecting IJs is inconsistent with the statements she made to the Civil Division attorney handling the Gonzalez v. Gonzales litigation. She stated to the Civil Division attorney that she did not use political considerations in selecting IJs, a position she reversed in her immunized
    testimony before Congress. If Goodling actually believed that political considerations were appropriate in IJ hiring, and if she had been told by Sampson that OLC had so advised, it is reasonable to believe that she would have said so to the Civil Division attorney, rather than making such inaccurate statements.

    Goodling also acknowledged that Sampson never told her that the civil service laws did not apply to BIA member hiring. Rather, she testified that she “assumed” that to be the case. Even if that assumption was initially justified, and we believe it was not, we determined that
    Goodling subsequently asked an OLC attorney for an opinion regarding the legal framework for hiring the Chair and Vice Chair of the BIA. She was advised that all BIA positions were either Schedule A career or SES career positions. Yet, despite having received this advice, she followed the same procedures she used in selecting IJ candidates, and considered
    political or ideological affiliations in recommending four individuals for BIA positions. [FN] 83

    Finally, we concluded that Goodling engaged in misconduct by making misrepresentations to the Civil Division attorneys representing the Department in the Gonzalez v. Gonzales litigation. An attorney from the Civil Division interviewed Goodling in January 2007 to learn how the OAG had handled the IJ hiring process. In the interview, Goodling told the attorney that she did not take political considerations into account in IJ hiring. The Civil Division attorney’s recollection of this point was specific and was corroborated by the memoranda he wrote
    contemporaneously and circulated within the Department in connection with deliberations about how to handle the lawsuit.

    [FN] 83 We also note that the political screening Goodling conducted on IJ candidates (even candidates provided by the White House) caused significant delays in filling IJ vacancies and significantly contributed to an increasing number of unfilled IJ positions.

    Report, pp. 117-118.

    In sum, the evidence showed that Sampson, Williams, and Goodling violated federal law and Department policy, and Sampson and Goodling committed misconduct, by considering political and ideological affiliations in soliciting and selecting IJs, which are career positions protected by the civil service laws.

    Report, p. 137.

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    Text and comments of the Virginia Rules of Professional Conduct violated by Ms. Goodling