# Could/Should Jay Bybee be disbarred? **URL:** \ **Category:** Great Debates\ **Created:** [April 22, 2009, 7:26pm UTC](https://boards.straightdope.com/t/could-should-jay-bybee-be-disbarred/494008 "2009-04-22T19:26:46Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [April 22, 2009, 7:26pm UTC](https://boards.straightdope.com/t/could-should-jay-bybee-be-disbarred/494008/1 "2009-04-22T19:26:46Z")
This could be a GQ question but figure it is more likely to be appropriate in here. This is pretty straightforward: 1. 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). 2. Who would initiate proceeding to disbar Bybee assuming there was enough question there to do so? 3. Can the American Bar Association (or State Bar) do this to a Federal Judge (which Bybee is now)? 4. 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? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 22, 2009, 9:38pm UTC](https://boards.straightdope.com/t/could-should-jay-bybee-be-disbarred/494008/2 "2009-04-22T21:38:38Z")
> [@Whack-a-Mole](#): > > T > > 1. 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). I’m not aware of any such rule. > [@](#): > > 1. Who would initiate proceeding to disbar Bybee assuming there was enough question there to do so? 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. > [@](#): > > 1. Can the American Bar Association (or State Bar) do this to a Federal Judge (which Bybee is now)? No and yes, respectively. > [@](#): > > 1. 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? 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. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [April 22, 2009, 9:42pm UTC](https://boards.straightdope.com/t/could-should-jay-bybee-be-disbarred/494008/3 "2009-04-22T21:42:12Z")
> [@Bricker](#): > > I’m not aware of any such rule. 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? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 22, 2009, 10:22pm UTC](https://boards.straightdope.com/t/could-should-jay-bybee-be-disbarred/494008/4 "2009-04-22T22:22:50Z")
> [@Whack-a-Mole](#): > > 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.” ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [April 22, 2009, 10:29pm UTC](https://boards.straightdope.com/t/could-should-jay-bybee-be-disbarred/494008/5 "2009-04-22T22:29:19Z")
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? ---
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [April 22, 2009, 10:33pm UTC](https://boards.straightdope.com/t/could-should-jay-bybee-be-disbarred/494008/6 "2009-04-22T22:33:24Z")
> [@Bricker](#): > > 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.” 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. ---
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [April 22, 2009, 10:50pm UTC](https://boards.straightdope.com/t/could-should-jay-bybee-be-disbarred/494008/7 "2009-04-22T22:50:19Z")
Here’s the [national bar association code](http://www.abanet.org/cpr/mrpc/rule_3_1.html), 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. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 22, 2009, 10:54pm UTC](https://boards.straightdope.com/t/could-should-jay-bybee-be-disbarred/494008/8 "2009-04-22T22:54:02Z")
> [@Lemur866](#): > > 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? He wins a seat on the Iowa Supreme Court. (rim shot) “Hey seriously, folks, tip your bartenders” ---
**Author:** ![smiling\_bandit](https://avatars.discourse-cdn.com/v4/letter/s/e9a140/32.png) [@smiling\_bandit](https://boards.straightdope.com/u/smiling_bandit)\ **Post date:** [April 22, 2009, 10:58pm UTC](https://boards.straightdope.com/t/could-should-jay-bybee-be-disbarred/494008/9 "2009-04-22T22:58:28Z")
For those of us who are not omniscient, who is Jay Bybee and why does anybody want to disbar him. ---
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [April 22, 2009, 11:07pm UTC](https://boards.straightdope.com/t/could-should-jay-bybee-be-disbarred/494008/10 "2009-04-22T23:07:26Z")
> [@smiling\_bandit](#): > > For those of us who are not omniscient, who is Jay Bybee and why does anybody want to disbar him. He helped write the recently released torture memos and is currently a federal judge. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [April 23, 2009, 3:17am UTC](https://boards.straightdope.com/t/could-should-jay-bybee-be-disbarred/494008/11 "2009-04-23T03:17:18Z")
> [@Bricker](#): > > 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.” 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? ---
**Author:** ![Rand\_Rover](https://avatars.discourse-cdn.com/v4/letter/r/db5fbb/32.png) [@Rand\_Rover](https://boards.straightdope.com/u/Rand_Rover)\ **Post date:** [April 23, 2009, 3:26am UTC](https://boards.straightdope.com/t/could-should-jay-bybee-be-disbarred/494008/12 "2009-04-23T03:26:02Z")
> [@Whack-a-Mole](#): > > 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. 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. ---
**Author:** ![Rand\_Rover](https://avatars.discourse-cdn.com/v4/letter/r/db5fbb/32.png) [@Rand\_Rover](https://boards.straightdope.com/u/Rand_Rover)\ **Post date:** [April 23, 2009, 3:28am UTC](https://boards.straightdope.com/t/could-should-jay-bybee-be-disbarred/494008/13 "2009-04-23T03:28:31Z")
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. ---
**Author:** ![hansel](https://avatars.discourse-cdn.com/v4/letter/h/6bbea6/32.png) [@hansel](https://boards.straightdope.com/u/hansel)\ **Post date:** [April 23, 2009, 3:41am UTC](https://boards.straightdope.com/t/could-should-jay-bybee-be-disbarred/494008/14 "2009-04-23T03:41:18Z")
> [@Rand\_Rover](#): > > 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. 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? ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [April 23, 2009, 3:54am UTC](https://boards.straightdope.com/t/could-should-jay-bybee-be-disbarred/494008/15 "2009-04-23T03:54:50Z")
> [@Rand\_Rover](#): > > 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. Oh really? > [@](#): > > A senior Justice Department official [Daniel Levin], charged with reworking the administration’s legal position on torture in 2004 became so concerned about the controversial interrogation technique of waterboarding that he decided to experience it firsthand, sources told ABC News. > > \ > > Levin, who refused to comment for this story, concluded waterboarding could be illegal torture unless performed in a highly limited way and with close supervision. And, sources told ABC News, he believed the Bush Administration had failed to offer clear guidelines for its use. > > \ > > The administration at the time was reeling from an August 2002 memo by Jay Bybee, then the head of the Office of Legal Counsel, which laid out possible justifications for torture. In June 2004, Levin’s predecessor at the office, Jack Goldsmith, officially withdrew the Bybee memo, finding it deeply flawed. > > \ > > But Levin never finished a second memo imposing tighter controls on the specific interrogation techniques. Sources said he was forced out of the Justice Department when Gonzales became attorney general. > > SOURCE: [Bush Administration Blocked Waterboarding Critic - ABC News](http://abcnews.go.com/WN/DOJ/Story?id=3814076&page=1) 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. ---
**Author:** ![hansel](https://avatars.discourse-cdn.com/v4/letter/h/6bbea6/32.png) [@hansel](https://boards.straightdope.com/u/hansel)\ **Post date:** [April 23, 2009, 4:32am UTC](https://boards.straightdope.com/t/could-should-jay-bybee-be-disbarred/494008/16 "2009-04-23T04:32:00Z")
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”? ---
**Author:** ![The\_Second\_Stone](https://avatars.discourse-cdn.com/v4/letter/t/bbe5ce/32.png) [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)\ **Post date:** [April 23, 2009, 4:47am UTC](https://boards.straightdope.com/t/could-should-jay-bybee-be-disbarred/494008/17 "2009-04-23T04:47:49Z")
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](http://en.wikipedia.org/wiki/John_Dean) ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [April 23, 2009, 5:27am UTC](https://boards.straightdope.com/t/could-should-jay-bybee-be-disbarred/494008/18 "2009-04-23T05:27:55Z")
> [@The\_Second\_Stone](#): > > 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. 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: > [@](#): > > TITLE 18 \> PART I \> CHAPTER 118 \> § 2441 > > (c) Definition.— As used in this section the term “war crime” means any conduct— > (1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party; > > SOURCE: [18 U.S. Code § 2441 - War crimes | U.S. Code | US Law | LII / Legal Information Institute](http://www4.law.cornell.edu/uscode/18/2441.html) Ok so far? (hope so) Next…the Geneva Convention (relevant parts) > [@](#): > > Article 3 > > In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions: > > 1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. > > To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: > > (a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; > > SOURCE: [Redirecting...](http://www.unhchr.ch/html/menu3/b/91.htm) 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.) ---
**Author:** ![The\_Second\_Stone](https://avatars.discourse-cdn.com/v4/letter/t/bbe5ce/32.png) [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)\ **Post date:** [April 23, 2009, 5:37am UTC](https://boards.straightdope.com/t/could-should-jay-bybee-be-disbarred/494008/19 "2009-04-23T05:37:04Z")
> [@Whack-a-Mole](#): > > Well…not sure I have got this right but how about violating the Geneva Convention? (me pulls up armchair IANAL chair) 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](http://www.fridascafe.com/images/Fresh_Cakes/Fresh-Fruit-Tort.jpg) (Fruit torts may be substituted due to availability.) ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [April 23, 2009, 5:56am UTC](https://boards.straightdope.com/t/could-should-jay-bybee-be-disbarred/494008/20 "2009-04-23T05:56:20Z")
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) [Next page](https://boards.straightdope.com/t/could-should-jay-bybee-be-disbarred/494008.md?page=2)