Why does it take 7 felony convictions for the Alaska Bar to suspend Sen. Stevens’ bar license?

Crossposted at Oxdown Gazette.

As twolf1 noted earlier at Oxdown Gazette, Sen. Ted Stevens will be facing ethics proceedings in the Senate in spite of his ridiculous claim that he wasn’t convicted. I must admit, however, that I will be at mildly surprised if Sen. Reid follows through on this. In addition to any Senate investigation, Sen. Stevens now also faces suspension of his Alaska Bar Association license to practice law. (H/t WriteChic).

But with all the unethical conduct engaged in both by attorneys representing the Republican Party and also by those serving in the Legislative, Judicial and Executive Branches over the last 7 1/2 years, the various state Bar Associations have independently initiated grievance proceedings against only two of them: I. Lewis Libby (Disbarred by the D.C. Bar – use “I ” as the First Name search criteria and Suspended by Pennsylvania) and Sen. Theodore F. Stevens (Suspended by the Alaska State Bar – Alaska State Bar’s websearch not updated as of 11-03-08). Even after they were convicted by a jury of their peers, and actually sentenced in Libby’s case, both the Alaska and Pennsylvania Bar Associations merely suspended these attorneys’ licenses.

According to Tom Kizzia of the Alaska Daily News, the Alaska State Bar proceeded similarly after a plea of guilty by Jim Clark:

There’s no deadline by which the Supreme Court has to decide such a license challenge, said chief deputy court clerk Lori Wade. Stevens has a right to file legal memoranda in his defense.

In the recent case of Jim Clark, the former chief of staff to Gov. Frank Murkowski, interim suspension of his bar license was imposed last May after two months of legal argument. Clark, who pleaded guilty to a felony conspiracy charge related to illegal campaign help from Veco, still awaits sentencing. A final resolution of Clark’s bar license will be made after a full disciplinary hearing following the sentencing.

But unless an attorney is convicted of a crime, the state bar associations will not investigate any unethical conduct by their member attorneys unless and until a formal grievance is filed against the attorney.

A couple of watch groups and some private attorneys have filed several grievances. Texas Watch has filed grievances against Texas Supreme Court Justices Nathan Hecht and David Medina for unethical activity taking place at the state level in Texas. At the federal level, CREW has filed grievances against Michael J. Elston and Esther Slater McDonald for their part in the politicized hiring practices taking place at the DoJ, although CREW’s complaint against Mr. Elston failed to include any allegations of Mr. Elston’s unethical conduct relating to the U.S. Attorney firing scandal which I document here. My favorite, though, is the complaint filed by private attorney, William Wilder, against Monica Marie Goodling for her numerous examples of unethical conduct, as I have documented here.

Unfortunately, these responses by the state Bar associations, watch groups and private attorneys have been far too limited to be of any real effect. These limitations led to The Grievance Project, which is my attempt to educate people, encourage them to educate others and try to convince an one or more people to file a complaint against these attorneys and many others – I stopped adding to my list when it passed 95 names.

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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.


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

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Michael J. Elston

On July 7, 2008, CREW filed a complaint against Michael J. Elston with the Virginia Bar for his role in the illegal politicization of hiring practices at the Department of Justice. However, CREW did not file a complaint with the Illinois, Kansas or Missouri Bars, jurisdictions in which Mr. Elston is also admitted, as explained here, but only sent these associations a copy of the Virginia complaint. More importantly, because the CREW complaint addressed only the illegal politicization of hiring practices at the Department of Justice, CREW notably failed to address Mr. Elston’s role in the politicized firing of several sitting United States Attorneys. As set forth below, Mr. Elston is also in violation of the Rules of Professional Conduct for Illinois, Kansas, Missouri and Virginia regarding his role in the United States Attorney firings.

Personal Information:

  • Name: Michael J. Elston, Partner, McGuireWoods LLP
  • Washington Square, 1050 Connecticut Avenue N.W., Suite 1200
    Washington, District of Columbia 20036-5317
  • Telephone: 202-857-1700, Fax: 202-857-1737

Bar Information: Illinois

  • ID No.: N/A
  • Date of Admission as Lawyer by Illinois Supreme Court: November 10, 1994
  • Registered Business Address: Mcguirewoods LLP
    1750 Tysons Blvd, Suite 1800
    McLean, VA 22102-4231
  • Registered Business Phone: (703) 712-5366
  • Illinois Registration Status: Active and authorized to practice law
  • Last Registered Year: 2008
  • Malpractice Insurance: (Current as of date of registration; consult attorney for further information) In annual registration, attorney reported that he/she has malpractice coverage.
  • Public Record of Discipline and Pending Proceedings: None

Grievance Information: Illinois

Bar Information: Kansas

  • ID No.: N/A
  • Status: Unknown
  • On July 2, 2008, Amanda Provorse, Attorney Registration, responded to my e-mail request for Mr. Elston’s status with the Kansas Bar that “Mr. Elston is currently active and in good standing. He was admitted 9/29/1998.”

Grievance Information: Kansas

Bar Information: Missouri

Grievance Information: Missouri

Bar Information: Virginia

  • ID No.: N/A
  • Status: Active
  • Registered Address: 1750 Tysons Boulevard, Suite 1800, McLean, VA 22102-4215
  • Registered Phone: 703-712-5366 and Fax: 703-712-5215
  • Member class: Active

Grievance Information: Virginia

While reviewing this matter, it is important to keep in mind that the privilege to practice law imposes duties and responsibilities on each attorney who accepts a license to practice law. These obligations are described in the Preamble to the Illinois Rules of Professional Conduct :

The practice of law is a public trust. Lawyers are the trustees of the system by which citizens resolve disputes among themselves, punish and deter crime, and determine their relative rights and responsibilities toward each other and their government. Lawyers therefore are responsible for the character, competence and integrity of the persons whom they assist in joining their profession; for assuring access to that system through the availability of competent legal counsel; for maintaining public confidence in the system of justice by acting competently and with loyalty to the best interests of their clients; by working to improve that system to meet the challenges of a rapidly changing society; and by defending the integrity of the judicial system against those who would corrupt, abuse or defraud it.

To achieve these ends the practice of law is regulated by the following rules. Violation of these rules is grounds for discipline.

* * *

The quality of the legal profession can be no better than that of its members. Lawyers must exercise good judgment and candor in supporting applicants for membership in the bar.

Lawyers also must assist in the policing of lawyer misconduct. The vigilance of the bar in preventing and, where required, reporting misconduct can be a formidable deterrent to such misconduct, and a key to maintaining public confidence in the integrity of the profession as a whole in the face of the egregious misconduct of a few.

These obligations are also expressly stated in the Preamble to the Virginia Rules of Professional Conduct, the Preamble to the Kansas Rules of Professional Conduct and the Preamble to the Missouri Rules of Professional Conduct, which provide, 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’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 selfinterested 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.

It is also important to bear in mind that although Mr. Elston denies improper motives or conduct, his denials and protestation must be evaluated based on the totality of the circumstances. As noted in the Illinois Rules of Professional Conduct, for Mr. Elston to believe that his conduct was proper, he 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.” Additionally, because “a lawyer of reasonable prudence and competence would ascertain the matter in question” to be improper, Mr. Elston reasonably should have known that his conduct was improper.

As detailed more specifically below, Mr. Elston’s conduct violated the following the following rules of professional conduct:

Illinois Rules of Professional Conduct:

Kansas Rules of Professional Conduct

Missouri Rules of Professional Conduct

Virginia Rules of Professional Conduct

File a grievance against Mr. Elston

  1. Print, complete and sign the official Complaint Form for Illinois, Kansas, Missouri (or .pdf) and/or 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.

Allegation: Michael J. Elston engaged in conduct that was a violation of federal laws that prohibit the obstruction of justice when he threatened four (4) recently-resigned United States Attorneys.

Michael J. Elston’s participation in the scheme to fire multiple United States Attorneys is at least unethical, if not actually criminal. As set out in greater detail below, Mr. Elston’s role in the firing of numerous United States Attorneys included placing telephone calls to several of these U.S. Attorneys in which he conveyed the threat that the Department of Justice would publicly attack the U.S. Attorneys if they chose to testify to the United States House and Senate. As reported by Paul Kiel at TPMMuckraker on May 2, 2007,

U.S. Attorney for Arizona Paul Charlton told Congress that Michael Elston, the chief of staff to Deputy Attorney General Paul McNulty, called him and warned him to remain silent. “I believe that Elston was offering me a quid pro quo agreement: my silence in exchange for the Attorney General’s,” Charlton wrote in answer to questions from the House Judiciary Committee.

Charlton did not expound on the conversation in his answer, only saying that the call occurred after the firing on December 7th, but before the attorney general testified before the Senate Judiciary Committee on January 18th of this year.

It’s not the first time that Elston has been accused by one of the fired U.S. attorneys of trying to intimidate them into silence. Two others have said the same thing.

U.S. Attorney for Little Rock Bud Cummins testified before the Senate Judiciary Committee that Elston had made a similar call to him in mid-February. Cummins produced an email written the day of the call that clearly laid out the threatening undercurrent to Elston’s message.

And U.S. Attorney for Seattle John McKay has said that he got a call from Elston in December. Newsweek reported that McKay says “he also got a phone call from a ‘clearly nervous’ Elston asking if he intended to go public: ‘He was offering me a deal: you stay silent and the attorney general won’t say anything bad about you.'” (Emphasis supplied.)

Prior to this article, Mr. Kiel had reported on the contents of Mr. Cummins’ e-mail on March 7, 2007:

In a February 19th article in The Washington Post, Cummins was quoted on the firings:

“They’re [the Justice Department] entitled to make these changes for any reason or no reason or even for an idiotic reason,… But if they are trying to suggest that people have inferior performance to hide whatever their true agenda is, that is wrong. They should retract those statements.”

The next day, Cummins got a call from Elston. And very unfortunately for the Justice Department, Cummins sent out an email no more than an hour after the call to the other fired prosecutors (you can see it here):

The essence of his message was that they feel like they are taking unnecessary flak to avoid trashing each of us specifically or further, but if they feel like any of us intend to continue to offer quotes to the press, or organize behind the scenes congressional pressure, then they would feel forced to somehow pull their gloves off and offer public criticisms to defend their actions more fully…. I was tempted to challenge him and say something movie-like such as “are you threatening ME???”, but instead I kind of shrugged it off…

Cummins, a lifelong Republican, continues in the email to refer to Elston’s “threat of retaliation” and the “threatening undercurrent in the call.” So it was abundantly clear to him that he was being threatened.

The most inflammatory part of the email is Cummins’ description of Elston’s reaction to the idea of the fired prosecutors testifying before Congress:

“He reacted quite a bit to the idea of anyone voluntarily testifying and it seemed clear that they would see that as a major escalation of the conflict meriting some kind of unspecified form of retaliation.”

Mr. Kiel also reported on these comments from fired U.S. Attorney John McKay:

Now another prosecutor, Seattle’s John McKay, says he got a similar call much earlier, before the firings had even been reported. From Newsweek:

After McKay was fired in December, he says he also got a phone call from a “clearly nervous” Elston asking if he intended to go public: “He was offering me a deal: you stay silent and the attorney general won’t say anything bad about you.”

Murray Waas of the National Journal reported on May 3, 2007 these details regarding Mr. Elston’s conduct:

The U.S. attorneys have said that Elston, in effect, told them that if they kept quiet about their dismissals, the Justice Department would not suggest that they had been forced to resign because of poor performance.

* * *

McKay, who was the first of the prosecutors whom Elston called, described Elston’s message to him: “The attorney general was not going to disclose that I or the other U.S. attorneys were fired or forced to resign.… ‘We have no intention of naming people.'”

McKay said that Elston never specifically suggested an explicit quid pro quo whereby Justice officials would not say that McKay had been fired for cause or poor performance if McKay did not talk to the media or Congress about his firing. However, McKay said, “a reasonable person would have felt both offended and threatened” by Elston’s call.

McKay said that the message he took away from the conversation was, “If you remain silent, we will not out you as someone who was forced to resign.”

McKay said that he made contemporaneous notes of his conversation with Elston, and dated them — something, he said, that was not his ordinary practice. He did so because of his concerns about what Elston was telling him, according to McKay.

Charlton said he got a similar phone call from Elston on the same day. In formal response to written questions posed to him by the House Judiciary Committee, Charlton said, “I believe that Elston was offering me a quid pro quo agreement: my silence in exchange for the attorney general’s.”

Cummins testified before the Senate Judiciary Committee on March 6, at which time a contemporaneous e-mail he wrote within an hour of his phone call with Elston was released. In the e-mail, which he sent to five of his fellow prosecutors, Cummins said that the “essence of [Elston’s] message” was that if any of the fired U.S. attorneys had pressed their case in the media or before Congress, senior aides to Attorney General Alberto Gonzales might “feel forced to somehow pull their gloves off” and accuse the prosecutors of ineptitude or poor management.

Cummins also wrote in his e-mail that Elston had called him because he was upset about comments Cummins had made in the press about his firing. “[Justice officials] feel like they are taking unnecessary flak to avoid trashing each of us,” Cummins said in the e-mail to his fellow prosecutors. “I also made it a point to tell him that all of us have turned down multiple invitations to testify. He reacted quite a bit to the idea of anyone voluntarily testifying, and it seemed clear that they would see this as a major escalation of the conflict meriting some kind of unspecified form of retaliation.”

McKay, one of the prosecutors who got the e-mail, said: “[Cummins] wanted to send a message to all of us. We got that message, loud and clear: If you talk to the press or go to Congress, the Department of Justice will not consider you a friend. I considered it an act of intimidation.”

* * *

At the March 6 Senate Judiciary hearing, Sen. Sheldon Whitehouse, D-R.I., asked Cummins and three others U.S. attorneys what they would have done in their capacity as federal prosecutors had they learned that an interested party in one of their investigations had tried to discourage a witness from providing information or testifying. All four said that they would have investigated the matter to determine a possible obstruction of justice.

“Mr. Cummins, let me ask you first. I’d like to ask you to put your U.S. attorney hat back on,” Whitehouse said. “You’re still in office, and think of a significant grand jury investigation that you led as United States attorney in your district. And consider that a significant witness in that grand jury investigation has just come into your office to relate to you that prior to his grand jury testimony he was approached about his testimony and [told]… essentially exactly the words that Mr. Elston approached you. What would your next step be as United States attorney?”

Cummins responded: “We take intimidation of witnesses very seriously in the Department of Justice and the U.S. attorney’s office, so we would be very proactive in that situation.”

Attempting to moderate his statement, he added: “I would qualify that by saying that at the time this discussion was had, we weren’t under a subpoena; the idea of testifying was just kind of a theoretical idea out there. And I would say … to the extent we talked about testimony at all, it was the idea that running out and volunteering to be part of this would not be viewed charitably by the people that it would affect.”

Whitehouse pressed Cummins: “But if that sort of approach had been made to a witness in an active proceeding that you were leading, and you were extremely proactive about it, that would lead you where?”

“Well, we’d certainly investigate it and see if a crime had occurred.”

“And the crime would be?”

Cummins responded: “Obstruction of justice. I think there are several statutes that might be implicated — but obstruction of justice.”

Whitehouse posed the same question to John McKay, the fired U.S. attorney from Washington state.

McKay responded: “I would be discussing it with the assigned prosecutor and federal agents.”

“With regard to?”

“With regard to possible obstruction of justice.”

Whitehouse next put the question to David Iglesias, the fired U.S. attorney from New Mexico:

Iglesias replied: “Same answer, sir. I would contact the career [assistant U.S. attorney] and probably the FBI and talk about what’s the evidence we have to maybe move forward on an obstruction investigation.

Finally, Whitehouse looked toward Carol Lam, the fired U.S. attorney from San Diego.

She answered without hesitation: “Fundamentally the same answer: witness intimidation.” (Emphasis supplied.)

Lara Jakes Jordan adds in this article on June 16, 2007:

“I believe that Elston was offering me a quid pro quo agreement: my silence in exchange for the attorney general’s,” wrote Paul Charlton, the former U.S. attorney in Nevada.

John McKay, former top prosecutor in Seattle, said he perceived a threat from Elston during his call. And Carol Lam, who was U.S. attorney in San Diego, said that “during one phone call, Michael Elston erroneously accused me of ‘leaking’ my dismissal to the press, and criticized me for talking to other dismissed U.S. attorneys.”

A fourth former U.S. attorney, Bud Cummins in Little Rock, Ark., had made a similar accusation in an e-mail released in March. At the time, Elston said he was “shocked and baffled” that his Feb. 20 conversation with Cummins could be interpreted as threatening.

Finally, Dan Eggen and Amy Goldstein report in the Washington Post on June 16, 2007:

Former U.S. attorney John McKay of Seattle told Congress that on Jan. 17 — before McKay stepped down — he received a call from Elston that he “greatly resented.” He said Elston attempted to “buy my silence by promising that the attorney general would not demean me in his Senate testimony.”

“My handwritten and dated notes of this call,” McKay told Congress, “reflect that I believed Mr. Elston’s tone was sinister and that he was prepared to threaten me further if he concluded I did not intend to continue to remain silent about my dismissal.”

Paul K. Charlton, who was the U.S. attorney in Phoenix, said that he, too, received a call that day in which Elston offered “a quid pro quo agreement: my silence in exchange for the attorney general’s.” Another former prosecutor, Carol C. Lam of San Diego, said Elston accused her of “leaking” word of her dismissal to the press “and criticized me for talking to other dismissed U.S. attorneys.”

Former U.S. attorney Bud Cummins of Little Rock also recounted a Feb. 20 conversation with Elston that Cummins said contained a “threatening undercurrent” warning that Justice Department officials would retaliate if he or his colleagues spoke to journalists or volunteered to testify in Congress.

As described by fired United States Attorneys John McKay, Bud Cummins, Paul Charlton and Carol Lam and as reported in the public record as noted above, the conduct of Mr. Elston clearly establishes that he committed criminal or deliberately wrongful acts that reflects adversely on the his honesty, trustworthiness and fitness to practice law. Additionally, Mr. Elston clearly engaged in conduct involving dishonesty, fraud, deceit or misrepresentation.

Allegation 2:

Michael J. Elston engaged in conduct that was a violation of federal laws that prohibit politicization of hiring within the Department of Justice when he selected candidates for employment based on political criteria.

As described in thisletter to Senator Patrick Leahy, Chairman, Committee on the Judiciary, United States Senate, and The Honorable John Conyers, Jr., Chairman, Committee on the Judiciary, United States House of Representatives from A Group of Concerned Department of Justice Employees, dated April 9, 2007, Mr. Elston engaged in conduct that was a violation of federal hiring laws:

Needless to say, many people were upset and confused. Why had so many potential interviewees been removed from the list? [Italics in original] Top supervisors requested answers, and on December 5 a meeting was held with Michael Ellston [sic], Chief of Staff to Deputy Attorney General Paul McNulty. Many division attorneys and staff were present, and Mr. Ellston [sic] was offensive to the point of insulting. Claiming that the entire group had not “done their jobs” in reviewing applicants, he said that he had a “screening panel” go over the list and research these candidates on the Internet; he refused to give the names of those on his “panel.” Mr. Ellston [sic] said that people were struck from the list for three reasons:grades, spelling errors on applications, and inappropriate information about them on the Internet, When the meeting attendees protested that these interviewees had excellent grades, Mr. Ellston [sic]replied that a Harvard graduate in the bottom half of the class was more desirable than the top students at a second-tier law schools. Although Mr. Ellston [sic] stated that he would entertain appeals to his decisions, few of these appeals were granted.

When division personnel staff later compared the remaining interviewees with the candidates struck from the list, one common denominator appeared repeatedly: most of those struck from the list had interned for a Hill Democrat, clerked for a Democratic judge, worked for a “liberal” cause, or otherwise appeared to have “liberal” leanings. Summa cum laude graduates of both Yale and Harvard were rejected for interviews. There are also reports that officials at Harvard’s Career Placement Office called DOJ personnel to ask why their students were not getting interviews and also to ask why decisions had not yet been made about the Summer Law Intern Program.

These allegations were confirmed by the United States Department of Justice Office of Professional Responsibility and Office of the Inspector Generals in their report,An Investigation of Allegations of Politicized Hiring in the Department of Justice Honors Program and Summer Law Intern Program, which provided the following details regarding Mr. Elston’s conduct:

…. However, we believe the most significant misconduct was committed by ELSTON, the head of the Screening Committee. ELSTON failed to take appropriate action when he learned that McDonald was routinely deselecting candidates on the basis of what she perceived to be the candidates’ liberal affiliations. We also concluded that ELSTON deselected some candidates – and allowed the deselection of others – based on impermissible considerations.

* * *

As explained below, we concluded that ELSTON violated federal law and Department policy by deselecting candidates based on their liberal affiliations. First, the data analysis indicates that highly qualified candidates with liberal or Democratic Party affiliations were deselected at a much higher rate than highly qualified candidates with conservative or Republican Party affiliations. Second, ELSTON admitted that he may have deselected candidates in a few instances due to their affiliations with certain liberal causes. ELSTON also was unable in specific cases to give a credible reason as to why highly qualified candidates with liberal or Democratic Party affiliations were deselected.

While ELSTON generally denied that he considered political or ideological affiliations in evaluating candidates, he admitted when questioned about certain candidates that he considered aspects of those candidates’ ideological affiliations in his evaluation. ….

In addition, ELSTON consistently was unable to provide credible explanations as to why he denied the appeals of the highly qualified candidates who had liberal or Democratic Party affiliations. His proffered reasons were also inconsistent with other statements he made or actions he took. ….

Similarly, we did not find credible ELSTON’s explanation that he may have denied the appeal of a highly qualified candidate who had worked for the Center for the Study of Sexual Minorities in the Military because he concluded the candidate would not “stand up for the law with respect to sentencing and Department policy” due to the statement in her essay that she would be able to exercise prosecutorial discretion as a federal prosecutor. We also did not credit ELSTON’s other explanation for denying this candidate – that she was not academically qualified because she was in the top third rather than the top quarter of her class at Stanford Law – since it was inconsistent with his actions in approving other candidates from lower-tier law schools with lower grades. During his interview, ELSTON also frequently pointed to lines in candidates’ essays that may have been a basis for deselecting candidates because he said these statements could be indications that the candidates would improperly follow their own consciences rather than the Department’s policies. These included statements such as the candidate wanting to work for the Department because the job would allow the candidate “to consider what is best for my country.”

In addition to ELSTON’s failure to provide credible explanations for his actions during his interview, we concluded that ELSTON was not candid with others in the Department who questioned him during the hiring process about why candidates were being deselected. ….

Moreover, ELSTON tried to minimize his role in selecting candidates when he was questioned by others about the Committee’s decisions. ELSTON frequently explained that other Committee members had been responsible for the decisions and described his role as a conduit. However, the evidence demonstrated that he was casting the deciding vote on a significant number of candidates that Fridman had approved and McDonald had rejected.

In sum, we found that ELSTON was aware that McDonald was rejecting candidates based on her perception of the candidates’ political or ideological affiliations and that he failed to intervene, discuss it with her, or stop her from doing so. We also concluded that ELSTON committed misconduct, and violated federal law and Department policy, when he deselected candidates and denied appeals based on his perception of the political or ideological affiliations of the candidates.

* * *

IV. Conclusions and Recommendations

* * *

The documentary evidence and witness interviews also support the conclusion that two members of the 2006 Screening Committee, Esther Slater McDonald and Michael ELSTON, took political or ideological affiliations into account in deselecting candidates in violation of Department policy and federal law. For example, the evidence showed that McDonald wrote disparaging statements about candidates’ liberal and Democratic Party affiliations on the applications she reviewed and that she voted to deselect candidates on that basis.

We also found that ELSTON, the head of the 2006 Screening Committee, failed to take appropriate action when he learned that McDonald was routinely deselecting candidates on the basis of what she perceived to be the candidates’ liberal affiliations. The evidence also showed that ELSTON himself deselected some candidates – and allowed the deselection of others – based on impermissible considerations. Despite his initial denial in our interview that he did not consider such inappropriate factors, he later admitted in the interview that he may have deselected candidates in a few instances due to their affiliation with certain causes. In addition, ELSTON was unable to give a credible reason as to why specific highly qualified candidates with liberal or Democratic credentials were deselected.

We concluded that, as a result of the actions of McDonald and ELSTON, many qualified candidates were deselected by the Screening Committee because of their perceived political or ideological affiliations. We believe that McDonald’s and ELSTON’s conduct constituted misconduct and also violated the Department’s policies and civil service law that prohibit discrimination in hiring based on political or ideological affiliations.

However, because both McDonald and ELSTON have resigned from the Department, they are no longer subject to discipline by the Department for their actions. Nevertheless, we recommend that the Department consider the findings in this report should either McDonald or ELSTON apply in the future for another position with the Department.

[Footnote] 59 However, we found evidence that McDonald knew that using political and ideological affiliation was inappropriate, but did it anyway. As noted above, in an e-mail dated October 25, 2006, unrelated to the Honors Program and SLIP, McDonald advised a friend applying for a career position with the Department “there’s not much I can do apart from recommending you because there are legal constraints on career hiring to ensure that it’s not political.”

[Footnote] 60 Although ELSTON stated that he did not know whether McDonald’s no votes were actually based upon the negative comments she was making about the candidates’ liberal affiliations, we found that statement disingenuous. Fridman told ELSTON that McDonald was doing this, and the notations on the applications, which ELSTON recognized as McDonald’s handwriting, showed that McDonald was circling and commenting on these groups. Moreover, many of these candidates had stellar credentials, and there was no other apparent reason for McDonald recommending their deselection.

[Footnote] 61 OPR Counsel H. Marshall Jarrett recused himself from the evaluation of DeFalaise’s conduct.

(Emphasis supplied.)

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Text of the Illinois, Kansas, Missouri and Virginia Rules of Professional Conduct violated by Mr. Elston.

Welcome, USDOJ.

Thank you for visiting The Grievance Project.  (Statcounter and Sitemeter information is at the end of this post).

Earlier today, your boss, Attorney General Michael B. Mukasey, testified before the United States Senate Committee on the Judiciary. Attorney General Mukasey concluded his prepared remarks with the following statement:

As I have said many times, to members of the public and to Department employees, it is crucial that we pursue our cases based solely on what the law and facts require, and that we hire our career people without regard for improper political considerations. It is equally crucial that the American people have complete confidence in the propriety of what we do. My promise to you is that I have done, and I will continue to do, what I can to ensure that politics is kept out of decisions about cases and out of decisions about career hiring at the Department of Justice.

I wouldn’t doubt that the minimal attention that Attorney General Mukasey has paid to the politicization at DOJ is, in fact, the outer limit of what he can or will do (or is allowed to do) to ensure that politics is kept out of the Department. What he has done, however, is simply not enough. If you’re an attorney at DOJ, whether in Arlington, Virginia (according to Statcounter), Washington, D.C. (according to SiteMeter) or elsewhere, you are likely to have an affirmative obligation under the rules of professional conduct in which you’re admitted to report the 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 conduct that raises questions as the attorney’s fitness to practice law. Specifically, Rule 8.3 of the Virginia Rules of Professional Conduc (.pdf) states that

A lawyer having reliable information that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness to practice law shall inform the appropriate professional authority.

I encourage you to file a grievance against any former or current DOJ attorney who you know has breached his or her ethical obligations.

Rule 8.3 of the Washington, D.C. Rules of Professional Conduct similarly provides that

A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

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CREW files grievances against Michael J. Elston and Esther Slater McDonald

As far back as 2006, I began contacting various parties – including CREW – to suggest that an organized effort to file grievances would be an effective tactic for responding to the litany of attorneys engaged in questionable ethical conduct. Like most people and organizations I contacted, CREW never responded. Of the few responses I did receive, only one or two were in support of the idea and the rest usually just stated a simple reason or two why the idea wouldn’t work. As attorney after attorney continued to violate their ethical obligations with impunity, my frustration grew that there was no organized effort to promote a grievance strategy. As a result, I launched The Grievance Project in October, 2007.

When the DOJ IG report An Investigation of Allegations of Politicized Hiring in the Department of Justice Honors Program and Summer Law Intern Program was released, I began preparing a grievance complaint against Michael J. Elston for his conduct described therein as well as for his role in the firing of United States Attorneys, including John McKay, Bud Cummins, Carol Lam and Paul Charlton. When I first saw Marcy Wheeler’s headline today declaring that CREW had filed grievances against Mr. Elston, my initial thoughts were that I just got ‘scooped’ by CREW and that I had wasted a lot time working on my Elston complaint. Almost immediately, I was quite pleased that CREW had finally adopted a (my?) grievance strategy and had filed the complaints.

A few thoughts now that I’ve read both Wheeler’s post and CREW’s press release:

  • Marcy Wheeler notes that this may have an affect on the law firms that have hired Mr. Elston and Ms. Esther Slater McDonald, stating that “[a]t the very least, one would hope this would embarrass the big corporate firms these two alleged law-breakers work for. After all, it appears that Alberto Gonzales still has only temporary employment. If all these hacks found themselves unemployable because of what they did, that’d be a start.” This was precisely my point regarding Hunton & Williams when they hired Kyle D. Sampson .
  • Although Mr. Elston is a member of the Illinois, Kansas, Missouri and Virginia Bars, CREW filed a complaint against Mr. Elston only in Virginia and only sent copies of Virginia complaint to the the Illinois, Kansas and Missouri Bars. I believe a stronger approach would not just provide these states with a copy of the Virginia complaint but would also be to file official complaints against Mr. Elston in Illinois, Kansas and Missouri (or .pdf ).
  • CREW’s complaint against Mr. Elston only addresses his violations of his ethical obligations with respect to the issues raised in the DOJ IG report . Because Mr. Elston is also in violation of his ethical obligations due to his involvement with his role in the firing of United States Attorneys, including John McKay, Bud Cummins, Carol Lam and Paul Charlton, I will finish my Elston complaint with respect to to these violations.
  • Now that CREW has adopted a (my?) grievance strategy, I’ve prepared grievance complaints against Alberto Gonzales, Kyle D. Sampson, Lisa Murkowski, Harriet E. Miers, Mark Everett Fuller, and John Yoo that are ready for CREW to simply print and file. If you agree, contact:
    • Naomi Seligman, CREW’s Deputy Director and Communications Director, at 202.408.5565 or nseligman @ citizensforethics.org, and
    • Melanie Sloan, CREW’s Executive Director, at msloan @ citizensforethics.org.

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