This could be a GQ question but figure it is more likely to be appropriate in here.
This is pretty straightforward:
I was wondering, under current rules for the American Bar Association (or State Bar Association if that is how it works), if there is sufficient reason to disbar him. I looked around for the rules/regulations that inform the Bar on this but didn’t find them (admittedly I did not look very hard).
Who would initiate proceeding to disbar Bybee assuming there was enough question there to do so?
Can the American Bar Association (or State Bar) do this to a Federal Judge (which Bybee is now)?
If a Federal Judge is disbarred does that person remain a judge? Is a law license necessary to be a federal judge? Would seem odd to be able to end-run the impeachment process normally used to remove federal judges but then would being disbarred spur a serious look at impeachment?
Any state in which he’s a member of the bar will have rules; typically a complaint about conduct can be submitted to a disciplinary committee by anyone.
No and yes, respectively.
So far as I’m aware, there is no rule requiring a federal judge to remain a member of the bar, and if there were, it might run afoul of the Constitution, which defines the process by which federal judges may be removed.
Ethical violations are not included? Or do ethics for this only encompass things like faulty billing of your client or somesuch?
I thought (and can certainly be mistaken) that legal ethics were more stringent than the law itself. Such that a lawyer could be disbarred while not having actually done anything illegal.
If there is a serious look at (maybe) prosecuting Bybee and such then is it unreasonable to assume that perhaps an ethical question is in there?
Legal ethics are more stringent than the law – in some areas. And they are silent in other areas. If you’re picturing legal ethics as sort of a “super morality” code, then you’re mistaken.
A lawyer can be disbarred for doing something that seems highly moral – breaking confidentiality, for example, to ensure that an innocent person isn’t sent to jail. They can be disbarred for acts that are morally neutral – co-mingling client and personal funds in a single bank account, even if scrupulously accurate records are kept as to whose funds are whose, and not a penny is paid out wrongly or lost by anyone.
Bybee offered a legal judgment on a legal issue. Congress’ decision to remove him, should they make it, is a political one. But there’s no legal ethical rule that says, “Thou shalt not opine that morally horrendous matters may be legal.”
What if the law-talking-guy’s legal opinion is so bad that it rises to the level of malpractice?
If I ask my lawyer if bank robbery is illegal, and he tells me it is legal, and I rob a bank and go to prison, what consequences does the lawyer face for such egregiously wrong legal advice?
Can you be disbarred for simply rendering a horrendously incorrect legal opinion. I don’t want to debate whether the torture memos are drastically wrong, but presumably at some point a lawyer can be punished for just pulling stuff out of his butt.
Here’s the national bar association code, which is apparently the basis for many state rules. Rule 3.1 seems to penalize knowingly making wrong opinions, but only in the context of “proceedings” (which I assume means trials).
KInda disappointed, When I googled, I was hoping that a set of rules written by lawyers, meant to be read by lawyers and governing the behavior of lawyers would be some sort of 900 page triple footnoted monument to opaque legalize. Guess they only write that way when they’re trying to confuse the common-folk.
Well, I thought possible criminal action was being considered but perhaps they just mean to make it a political matter. I may have misread what they were considering.
However, my contention is not about it being a morally horrendous matter. Certainly that spurs my ire but I think there is a more basic point here.
In my view (noting IANAL) Bybee positively spun the law to arrive at a preconceived goal. Basically he fit the law to suit his client’s needs.
Is that really ok? Can an attorney really render an opinion that perverts the intention of our laws to such a degree? Keep in mind where this was and what it led to. This was not a court room where an opposing attorney could argue the other side and have a decision arrived at. This was essentially redrafting the laws as written and clearly not in their spirit via torturing (no pun intended) the letter of the law.
Again I am unaware of what things are under the purview of the Bar Association to disbar an attorney for. Just seems if the Attorney General is spending time closely looking at this matter then is it unreasonable to think the Bar might have something to look at?
No he didn’t. His client said “is it legal under X law to do Y action?” And Bybee said “yes.” That’s it. He didn’t change the law, or subvert its intent, or do anything “morally wrong” (whatever the hell that means really), he just expressed his opinion about whether it is legal under a certain law to do a certain action.
Also, the American Bar Association is just a club slash lobbying group slash professional association for lawyers. I guess it can kick people out, but being kicked out doesn’t mean that one can no longer work as a lawyer. The same goes for city and county bar associations.
State bar associations are different than the above. Every state that I am aware of has a rule saying that a lawyer must be a member of that state’s bar association to practice law in that state (generally–a lawyer can generally try the occasional case in a state without being a member of that state’s bar). The state bar will have ethical rules and procedures for booting a lawyer that violates those rules. I don’t know whether a federal judge must be a member of any state bar to be a federal judge.
I’ve seen multiple legal commentators judge the legal reasoning in the torture memos to be so mendacious as be malpractice. No less than Jack Goldsmith, the man who succeeded Bybee under the Bush Administration’s DOJ, repudiated the memos on the basis of their legal reasoning.
Regardless of why Bybee reached the conclusions that he did, his answer was apparently bad lawyering–egregiously so. Assuming that to be true, shouldn’t he be impeached or disbarred when his horrendously bad reasoning led to prosecutable offenses?
Looks like the bosses were looking for a preconceived result and Bybee gave it to them. The Bush Administration sacked the guy who personally experienced waterboarding and deemed it torture.
This also does not change the issue that Bybee got rather creative with the law to justify the use of torture regardless what you want to believe about preconceived notions.
For the purposes of this thread I think that is the issue. Is it ok, ethically, to contort the law to this extent? Even if it is not illegal (seemingly an open question) can it be considered unethical by the law profession?
ETA: Hansel just said it better and more succinctly than I did.
Perhaps one of the lawyers here can tell us what the legal status of a memo like Bybee’s or Yoo’s is: Are the memos just knowledgeable opinions, or do their findings have some legal weight? Could a CIA interrogator hauled into court for “coercive interrogation” wave the Yoo memos around and say “I was following these in good faith, therefore I’m not guilty”?
Here’s my take: he can be investigated and tried by Congress if they feel that it is appropriate. What criminal laws, what ethical violations may he have committed?
A lawyer may not participate in a crime. For example, a lawyer may not have his organized crime clients come into his office and advise them that money laundering is not in fact money laundering and if he does so, knowing that the clients will use his bad faith opinion as an advice of counsel defense, he is an accessory before the fact. He may go to prison and so may the clients.
The question may become did the lawyer have any good faith reason to believe that the money laundering operation was not criminal? Did they lie to him? That is a question of fact for the jury.
If the lawyer committed these felonies, these become crimes of moral turpitude (dishonest) and are cause for discipline before whatever bar organizations that he may belong to.
John Dean lost his law license for advising President Nixon on how to hush things up. John Dean - Wikipedia
Well…not sure I have got this right but how about violating the Geneva Convention? (me pulls up armchair IANAL chair)
First…the Geneva Convention on War Crimes is part of US law:
Ok so far? (hope so)
Next…the Geneva Convention (relevant parts)
So, in line with your money laundering example did not Bybee tell the Administration that something illegal was in fact legal?
(Note I realize well trained legal eagles looked for loopholes in all this so be nice…just trying to work through it and am bound to get some part wrong.)
Mine was a rhetorical question about laws and ethics. Not only are there Geneva Conventions, there are numerous US codes also. Yes, there is a lot of probable cause to bring charges in this case. Criminal charges and ethics charges. Impeachment charges and my favorite of all, CIVIL TORTS!!! http://www.fridascafe.com/images/Fresh_Cakes/Fresh-Fruit-Tort.jpg (Fruit torts may be substituted due to availability.)
I’m curious…did the American Bar Association weigh in on any of this as it was occurring? Offer an opinion one way or the other? (really asking…I do not know)
