5. I understand the Maryland ethics board concluded that the Justice Department's accusations were meritless in 2005, but now, seven years later, the same charges are still pending with the D.C. Bar Counsel--with which the Justice Department claims a "special relationship." What's going on there?
You would have to ask Bar Counsel Wallace E. "Gene" Shipp, Jr. He personally took over the handling of my case a year and a half ago. The Maryland Bar dismissed the charges against me in 2005. My referral to the D.C. Bar (the same Bar to which Yoo and Bybee would have been referred) is still pending after almost seven years. A number of legal scholars, including Jim Moliterno, have written about politically-motivated bar discipline. The referral was certainly retaliatory. I am disappointed, though, that the D.C. Bar would allow itself to be used as a tool of the Bush Justice Department.
Ironically, from 2005-07, I was elected by the D.C. Bar Board of Governors to serve on the D.C. Bar Legal Ethics Committee, which is separate from the disciplinary arm of the bar. Obviously, the right hand doesn't speak to the left.
6. How can your case be compared with the cases of John Yoo, Jay Bybee, and Steven Bradbury?
I am now the only Justice Department attorney that OPR referred for bar disciplinary action stemming from advice I gave in a terrorism caseand my advice was to permit an American terrorism suspect to have counsel.
Contrary to OPR's own policies, it hastily and vindictively forwarded my case to the state bars in which I'm licensed, absent a finding of "professional misconduct," much less a finding of "intentional misconduct or reckless disregard of an applicable standard or obligation"the benchmark that OPR uses. Instead, OPR referred me to the bar disciplinary authorities for "possible misconduct." Moreover, I was referred based on a secret report to which I did not have access. Finally, I was referred for conduct I engaged in as a private citizen, not as a public servant, after I had left the employ of the Justice Department.
To the extent that OPR holds itself out as an internal watchdog of the Justice Department, that is belied by the fact that David Margolis, a single senior career attorney who has been with the Department for more than 40 years, has the unilateral power to override anything OPR does. Like most career bureaucrats, he obviously has a vested institutional interest in legitimizing Department conduct. Margolis's take-away message is that it's okay to ignore the rules of professional conduct if you're scared or in a hurry, failing to realize, perhaps because he's a government attorney, that stress and deadlines are the status quo for most lawyers.
Although entirely predictable, the Justice Department's decision to give Yoo and his cohorts a pass should offend all lawyers. It is now incumbent upon the legal profession, which is entirely self-regulated, to provide oversight and accountability within its own ranks and to the public.
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