Bar complaints filed against Yoo, Bybee, Addington, Ashcroft, Gonzales, Mukasey, 6 others

Justin Blum at Bloomberg (h/t Zachary Roth at TPMMuckraker) reports that state bar complaints have been filed against twelve Bush administration lawyers involved in the authorization and sanctioning of torture by the United States of America, including two attorneys, Alberto Gonzales and John Yoo, whose disbarments I have long been advocating. [A complete list of the grieved attorneys – with links to the complaints – is included at the end of this post]. See also these reports by UPI, CNN and Scott Shane at NYT. Upon signing and filing the complaints on behalf of VotersForPeace (donate here ) and a coalition of organizations led by Velvet Revolution, attorney Kevin Zeese, Executive Director of VotersForPeace, stated in part:

Today, we filed complaints with the District of Columbia Bar and with four other states seeking the disbarment of 12 Bush-Cheney torture lawyers. These lawyers misused their license to practice law to provide legal cover for the war crime of torture. This misuse of their license requires the bar association to disbar them or the bar will become complicit in torture.

Complaints have been filed against: John Yoo, Judge Jay Bybee, and Stephen Bradbury who authored the torture memoranda. As well as attorneys who advised, counseled, consulted and supported those memoranda including Alberto Gonzales, John Ashcroft, Michael Chertoff, Alice Fisher, William Haynes II, Douglas Feith, Michael Mukasey, Timothy Flanigan, and David Addington. These detailed complaints, with over 500 pages of supporting exhibits, have been filed with the state bars in the District of Columbia, New York, California, Texas and Pennsylvania, and they seek disciplinary action and disbarment. …

This cadre of torture lawyers colluded to facilitate the abuse and torture of prisoners (detainee) that included, evidence suggests, deaths at overseas U.S. military facilities. Human Rights Watch reports 98 deaths of people in custody of the United States in Iraq and Afghanistan. Making torture even worse in this case is that it was used to try and get information to tie Saddam Hussein to al Qaeda – a relationship that did not exist – as well as information about non-existent weapons of mass destruction in order to justify the illegal invasion and occupation of Iraq.

We have asked the respective state bars to revoke the licenses of these attorneys for moral turpitude. They failed to show “respect for and obedience to the law, and respect for the rights of others,” and intentionally or recklessly failed to act competently, all in violation of legal Rules of Professional Conduct. Several attorneys failed to adequately supervise the work of subordinate attorneys and forwarded shoddy legal memoranda regarding the definition of torture to the White House and Department of Defense. These lawyers further acted incompetently by advising superiors to approve interrogation techniques that were in violation of U.S. and international law. They failed to support or uphold the U.S. Constitution, and the laws of the United States, and to maintain the respect due to the courts of justice and judicial officers, all in violation state bar rules.

Torture is illegal under United States and international law. It is illegal under the U.S. Constitution, domestic law and international treaties to which the United States is a party.

* * *

The torture memoranda did not provide objective legal advice to government decision-makers, but instead twisted the state of the law so that it was unrecognizable. They were so inaccurate that these memoranda are more justifications about what the authors and the intended recipients wanted the law to be, rather than assessments of what the law actually is.

* * *

We decided to take action today because the federal government seems unable and unwilling to act. The Department of Justice’s Office of Professional Responsibility has taken nearly five years to complete its report, as some of the memoranda at issue became public in June 2004. Further, this OPR investigation is focused only on two lawyers, John Yoo and Jay Bybee rather than all those involved. This inexcusable delay is unfair to the public because the consequences of any wrongdoing are diminished. The delay has already benefited the two men under investigation, John Yoo now has tenure at Berkeley law school and Jay Bybee now has a lifetime appointment as a federal court of appeals judge. If OPR had completed its duties in a timely manner it is unlikely that either appointment would have been made.

In addition to inaction by OPR, the Congress where select Members were briefed 40 times by the CIA, seems unable to take action because of fear of its own complicity being exposed. And, Attorney General Eric Holder, has now testified that he approved renditions – which results in prisoners being tortured by other countries at the behest of the United States – during the Clinton administration. And, sadly, the President of the United States has now decided to hide evidence of war crimes by refusing to release photographic and video evidence despite a court order to do so. Finally, the administration is appointing General McChrystal to be the head of operations in Afghanistan despite being responsible for commanding Fort Nama in Iraq as well as special forces involved in torture[.]

* * *

Therefore, the people must act to face up to this issue and restore morality and Rule of Law to the United States. In addition to filing these complaints we are starting a campaign for disbarment, public torture hearings and for the appointment of an Independent Prosecutor. People who want to get involved are urged to go to DisbarTortureLawyers.com and VotersForPeace.us.

Only by taking torture out of politics and allowing an independent prosecutor to pursue the facts and apply the law will the United States recover from these war crimes. Application of the rule of law, beginning with disbarment, is a necessary part of the process of healing the nation.

The Velvet Revolution statement regarding the filing of the complaints adds, in part, that:

The individually tailored complaints allege that the named attorneys violated the rules of professional responsibility by advocating torture. The memos written and supported by these attorneys advocating torture have now been repudiated by the Department of Justice, the White House, the Department of Defense and other experts in the field. The recently released Senate and Red Cross reports on detainee treatment provide uncontroverted evidence that the torture techniques advocated by the attorneys were used on human beings over an extended period of time. We have also sent a letter to House Judiciary Chairman John Conyers, asking that he initiate impeachment proceeding against Jay Bybee, who is now a sitting federal judge. The evidence is clear that, during his confirmation hearings, Mr. Bybee misused the classified status of his torture memos to portray a false picture of his legal history. Several Senators have stated publicly that Mr. Bybee would not have been confirmed if they had been aware of his torture memos. The bar complaints have been signed by our board attorney, Kevin Zeese, who also directs the Campaign for Fresh Air and Clean Politics, and Voters for Peace.

We ask other organizations to sign on to this campaign by sending an email to DisbarTortureLawyers@velvetrevolution.us. Individuals can sign on using the form below. This campaign will include a broad public relations push so we urge everyone to spread the word and for the press to contact us for comment and interviews.

You can make targeted donations to this campaign at with an earmark comment in the box at http://www.velvetrevolution.us/donate.php.

The complaints were filed against the following attorneys:

Links to the complaints can also be found at Velvet Revolution here, where you will find a Sign On Form to add your name to the campaign as well as links to the exhibits attached to the complaints, the released torture memos and other information.

Updated 05-19-09 to correctly identify William James Haynes II (instead of Michael Haynes) as one of the dirty dozen torture lawyers.  (h/t earlofhuntingdon)

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E-mail to Matthew Garrett Davis

Crossposted here at Oxdown Gazette.

Matthew Garrett Davis
Witte Law Offices
119 E Kalamazoo St.
Lansing, MI 48933
Phone: (517) 281-9374
Fax: (517) 485-0187
foster5701@hotmail.com

Mr. Davis,

Please accept this e-mail as an offer to reply to criticisms leveled against you as a result of the complaint you filed on behalf James Carabelli against the Center for Independent Media, the Michigan Messenger, Eartha J. Melzer, Jefferson Morley and David S. Bennahum. As I’m sure you knew it would, the litigation you filed has generated a fair share of publicity.

On September 17, 2008, Rachel Breitman reported in The AmLaw Daily that the Obama campaign filed class action litigation on behalf of “three county residents whose homes are undergoing foreclosure” against the Macomb County Republican Party. Ms. Breitman also reported that: response to this class action you:

Matthew Davis of Witte Law Offices in Lansing responded to the Obama suit Wednesday by releasing a letter addressed to the Center for Independent Media on behalf of [Macomb County Republican Party Chairman James] Carabelli and the state party threatening a countersuit if the Messenger’s story is not retracted within seven days.

“Mr. Carabelli has said that the quote attributed to him was fabricated by the reporter who interviewed him,” Bill Nowling, communications director for the Michigan Republican Party, told The Am Law Daily. “This is a page right out of the Democrats’ playbook of tricks.”

But the Center for Independent Media was nonplussed by the threatened libel action, saying that this was only a tactic to distract from the Obama campaign’s claim.

“We still have received no letter from the Michigan Party Republicans at this point, but we stand by our story,” said David Bennahum, the center’s chief executive officer. The publication is represented by John Pomeranz, a partner at Harmon, Curran, Spielberg & Eisenberg in Washington. “No threatened suit can change the facts.” [Emphasis supplied.]

Because the Center for Independent Media did not retract the story, you followed through with the intentions stated in your demand letter and filed Mr. Carabelli’s lawsuit claiming both negligent and malicious defamation. Kate Klonick, Who’s Paying the Lawyer for the Michigan GOP Official?, TPMMuckraker, October 3, 2008.

In reviewing the news of this matter, Marcy Wheeler at emptywheel alleges the litigation you filed is a SLAPP* suit:

By all appearances (particularly given the confidence MM has in their story), this is a SLAPP suit designed to either cow MM, or the larger CIM organization, which has outlets in key swing states: Minnesota, Colorado, Iowa, New Mexico, and Washington (and employes [sic] Spencer Ackerman in their DC Independent site).

According to Professors George W. Pring and Penelope Canan of the University of Denver, SLAPP suits generally have four (4) criteria:

“[SLAPPs] (1) involve communications made to influence a government action or outcome, (2) which result in civil lawsuits (complaints, counterclaims, or cross-claims), (3) filed against non-governmental individuals or groups (4) on a substantive issue of some public interest or social significance.”

Under the circumstances as I understand them, I tend to agree with Ms. Wheeler. Please note, however, that I’ve been unable to find a copy of the complaint online, including at the Macomb County Clerk website. Accordingly, I haven’t had a chance to review the specific allegations contained in the complaint. With that caveat, however, it does appear that the litigation you filed on behalf of Mr. Carabelli is, in fact, a SLAPP suit:

  1. The subject of the specific reporting by Ms. Melzer is the stated intentions of the Macomb County Republican Party to challenge any Macomb County voter whose home is in foreclosure and to influence the Macomb County Supervisor of Elections into accepting these challenges as legitimate; s/counts any challenge(s) to any Macomb County voter whose home is in foreclosure; – as well as the Michigan Messenger, generally
  2. The reporting has resulted in civil litigation;
  3. The litigation is filed against non-governmental individuals and groups: the Center for Independent Media, the Michigan Messenger, Eartha J. Melzer, Jefferson Morley and David S. Bennahum; and
  4. The subject of the litigation – the voting rights of Macomb County residents – is clearly a substantive issue of some public interest or social significance.

First, I would appreciate a copy of your demand letter to the Center for Independent Media, any reply you received to that letter and a copy of the complaint so I can better understand and evaluate this matter.

Second, the accusation that this lawsuit is a SLAPP suit necessarily infers that you are in violation of Rule 3.1, Meritorious Claims and Contentions, Michigan Rules of Professional Conduct, which states that:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous. A lawyer may offer a good-faith argument for an extension, modification, or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may so defend the proceeding as to require that every element of the case be established. [Emphasis supplied.]

Comments to Rule 3.1 state, in part, that:

The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. Such action is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail. The action is frivolous, however, if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person. Likewise, the action is frivolous if the lawyer is unable either to make a good-faith argument on the merits of the action taken or to support the action taken by a good-faith argument for an extension, modification, or reversal of existing law. [Emphasis supplied.]

Did you consider Rule 3.1 and the comments before filing this suit? If so, how did you conclude that the litigation was not filed primarily for the purpose of delay? What is the reason, if not for the primary benefit of harassing the defendants, that you advised your client to litigate against media publications, reporters and other individuals instead of intervening in the Obama campaign class action lawsuit when both lawsuits are based on the same statements allegedly made by Mr. Carabelli? What actionable damages has Mr. Carabelli suffered as a result of the publication of Ms. Melzer’s article. When was the last time you read Rule 3.1 and the comments to the rule?

Third, in determining the standard to apply in determining whether a lawsuit is frivolous or not pursuant to MRPC 3.1, Michigan Ethics Opinion R-009 (October 26, 1990) considered, inter alia, the Michigan statute which taxes costs for frivolous claims, MCR 2.625(A)(2), which defines frivolous:

“(a) ‘Frivolous’ means that at least 1 of the following conditions is met:

“(i) The party’s primary purpose in initiating the action or asserting the defense was to harass, embarass, or injure the prevailing party.

“(ii) The party had no reasonable basis to believe that the facts underlying that party’s legal position were in fact true.

“(iii) The party’s legal position was devoid of arguable legal merit.” [Emphasis supplied.]

Michigan Ethics Opinion R-009 further states:

Two standards have developed over the years regarding frivolous claims: one is a subjective test which asks whether this lawyer knew that the client’s case was without merit; and, the other is an objective test which asks whether a reasonable lawyer would have known that the case was without merit.

Although MRPC 3.1 does not specifically identify the nature of the investigation the lawyer should undertake or which of the two tests it adopts, this Committee has held in previous opinions that the objective test of a “disinterested lawyer” should be used.

* * *

The objective standard requires the lawyer to inquire into all facts presented by the client which are, for instance, contradicted by readily available evidence. Refutable or contradictory evidence must be investigated by the lawyer to ascertain the validity of the client’s claim.

Were you aware of Michigan Ethics Opinion R-009 and the comments before filing this suit? If not, why didn’t you conduct any research into your ethical obligations regarding this matter? If you were aware of the opinion, and considering that there is evidence contradictory to your client’s claims, what investigation of these claims did you conduct prior to filing this suit, as required by Michigan Ethics Opinion R-009?

Fourth, have you represented any other plaintiff or defendant in any other litigation or matter in which you have been accused of engaging in SLAPP tactics?

Thank you for your attention to this matter. I look forward to your response.

E.M./The Grievance Project

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E-mail to Robert H. Bork, Jr.

Robert H. Bork, Jr.
gonzalesfacts@gmail.com

Mr. Bork,

As the media contact for GonzalesFacts.com, I would request a response on the record to these allegations that Alberto Gonzales has engaged in conduct that calls into question his fitness to practice law. I have also previously requested a response from George J. Terwilliger III via this e-mail:

George J. Terwilliger III
White & Case LLP
701 13th Street NW
Washington, District of Columbia 20005
Telephone: 202-626-3628
Fax: 202-639-9355
gterwilliger@whitecase.com

Dear Mr. Terwilliger:

I have been researching the conduct of various attorneys who, in the service of the government of the United States, have engaged in conduct that violates the rules of professional conduct with which each attorney must comply. I have prepared factual allegations of the conduct of various attorneys, including your client Alberto Gonzales, that establish violations of the applicable rules of professional responsibility. (I have also prepared complaints for Kyle Sampson, Harriet Miers, Lisa Murkowski, John Yoo, Mark Everett Fuller, Monica Marie Goodling, Thomas W. Hartmann and Michael J. Elston.) The conduct of your client has violated several of the rules of professional conduct of the Texas Bar. His actions raise a substantial question as to his honesty, trustworthiness and fitness as a lawyer.

The purpose of this e-mail is to offer your client, or you on his behalf, the opportunity to respond to these allegations. I look forward to your response.

I look forward to your reply.

E.M./The Grievance Project

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E-mail to George J. Terwilliger III, counsel to Alberto Gonzales

George J. Terwilliger III
White & Case LLP
701 13th Street NW
Washington, District of Columbia 20005
Telephone: 202-626-3628
Fax: 202-639-9355
gterwilliger@whitecase.com

Dear Mr. Terwilliger:

I have been researching the conduct of various attorneys who, in the service of the government of the United States, have engaged in conduct that violates the rules of professional conduct with which each attorney must comply. I have prepared factual allegations of the conduct of various attorneys, including your client Alberto Gonzales, that establish violations of the applicable rules of professional responsibility. (I have also prepared complaints for Kyle Sampson, Harriet Miers, Lisa Murkowski, John Yoo, Mark Everett Fuller, Monica Marie Goodling, Thomas W. Hartmann and Michael J. Elston.) The conduct of your client has violated several of the rules of professional conduct of the Texas Bar. His actions raise a substantial question as to his honesty, trustworthiness and fitness as a lawyer.

The purpose of this e-mail is to offer your client, or you on his behalf, the opportunity to respond to these allegations. I look forward to your response.

E.M./The Grievance Project

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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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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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