The DoJ Office of Professional Responsibility is a real Roach Motel

John Gibeaut reports at the ABA Journal that the role of the Department of Justice’s Office of Professional Responsibility has descended to a level equivalent to that of a ‘Roach Motel’ and how, as a result, judges are beginning to take the discipline of unethical attorneys into their own hands.  In his lengthy article, Mr. Gibeaut details the ‘dismal history of intentional and inadvertent violations’ by federal prosecutors and the complaints to DoJ OPR made by Judge Mark L. Wolf, Chief Judge for the U.S. District Court for the District of Massachusetts, that yielded woefully inadequate DoJ OPR investigations and slap-on-the-wrist ‘punishments.’  The article begins with the following summary:

The government’s evidence link­ing reputed mob figures Vincent “the Animal” Ferrara and Pasquale “Patsy” Barone to a 1985 murder was pretty thin—an accomplice who escaped prosecution in exchange for testimony against the pair.

But a little over a year after the 1990 racketeering indictments of Ferrara, Barone and six other members of New England’s Patriarca crime family, a federal prosecutor in Boston learned his putative star witness had recanted.

Yet the prosecutor never told defense about the recantation, which he and a detective recorded in writing. Indeed, the defendants didn’t learn of the memos until 2003, when the detective spilled the beans at a hearing on habeas corpus petitions they filed seeking their release from long prison sentences.

Ultimately both went free, Barone in 2003 from a life sentence and Fer­rara in ’05 from a 22-year term. Chief U.S. District Judge Mark L. Wolf, who had imposed both sentences, was forced to cut them short.

The prosecutor, Assistant U.S. Attorney Jeffrey Auerhahn, was investigated by Massachusetts state bar authorities. Wolf dropped a dime on him after learning that Auerhahn’s boss had simply reprimanded him be­hind closed doors. That just wasn’t good enough for Wolf, considering he had to release two defendants re­garded as especially dangerous. Auerhahn still works at the U.S. attor­ney’s office in Boston, pros­ecuting terrorism cases.

But, going where few judges would, Wolf also penned an extraordi­nary series of letters—first to Attor­ney General Alberto R. Gonzales and then to his successor, Michael B. Mukasey—stating his case for stiffer punishment and voicing his frustration with the Justice Department’s secretive Office of Professional Re­spon­sibility, which is supposed to investigate complaints of mis­con­duct by prosecutors and law enforcement officials who work for the department.

“The department’s performance in the Auerhahn matter raises serious questions about whether judges should continue to rely upon the department to investigate and sanction misconduct by federal prosecutors,” Wolf wrote in a January 2008 letter to Mukasey.

Wolf, appointed by President Ronald Reagan in 1985, warned Mukasey that more jurists would begin punishing prosecutors behaving badly if the OPR didn’t.

“I anticipate this will become much more common unless the department’s performance in disciplinary matters improves significantly,” the judge cautioned.

Wolf’s stinging rebuke came not only from a veteran jurist, but from someone who as a young prosecutor helped set in motion the department’s disciplinary machinery in the aftermath of the Watergate scandal.

“As one who took pride in assisting Attorney General Edward Levi in establishing OPR more than 30 years ago,” Wolf told Mukasey, “I sadly doubt it is now capable of serving its intended purpose.”

Critics historically have regarded the OPR as inept at policing its own. Wolf’s exchanges with the attorney general also come amid calls for more transparency.

“I used to call it the Roach Motel of the Justice Department,” says Fordham University law professor Bruce A. Green, a former federal prosecutor and ethics committee co-chair for the ABA Criminal Justice Section. “Cases check in, but they don’t check out.”

The entire article is well worth reading.

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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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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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