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Bar Complaints Rather Than Criminal Prosecution Likely for Bush Lawyers

It's unlikely that former Bush administration lawyers John Yoo and Jay Bybee will face criminal prosecution for approving the legality of harsh interrogation tactics for terrorism suspects, reports
The Washington Post. Instead, sources say that a forthcoming Justice Department investigative report is likely to recommend referral of both lawyers to state ethics committees.

But what kinds of ethics violations did Yoo and Bybee commit? This charges in this case differ from, say, those invoked in the Arkansas Bar's disciplinary action against Bill Clinton, where the former president's license was suspended for five years for giving misleading testimony under oath in the Paula Jones case. Here, Yoo and Bybee provided shoddy legal advice, but no one is accusing them of misrepresentation or dishonesty.

Ethics expert Stephen Gillers told the Post that:

"The only theory on which [a case] could proceed would be if lawyers violated their duty to a client. . . . by giving the White House an opinion in which they did not actually believe," Gillers said.

To me, that seems like a tough standard to meet.

ABC's Jan Crawford comments further on the ethics issues at her Legalities blog. Crawford notes the difficulty in making an ethics charge stick, citing legal ethics expert Geoffrey Hazard, who concludes that
"it is hard to say that memo was so outside the range of plausible laywered judgement that no reasonable lawyer would render it."  Crawford also highlights another obstacle: Yoo is barred in Pennsylvania, which has a four year statute of limitations on bringing grievances -- and Yoo's memos fall outside of that window. And while Bybee, who is licensed in D.C. and Nevada (which have no deadlines), could still be disciplined, that result doesn't make sense.

The disparity between state bar policies relating to statutes of limitations doesn't make sense to John Steele at Legal Ethics Blog. He advocates a new law that would give DOJ continuing authority to impose discipline for acts conducted while at DOJ.

Meanwhile, the WSJ Law Blog explores the impact of potential ethics charges on Bybee's and Yoo's respective employment situations -- Bybee is a 9th Circuit judge, while Yoo teaches at UC California/Berkeley's law school. Technically, neither would suffer adverse consequences. Yoo needn't be licensed to practice law to teach, while Bybee could also remain on the bench if disbarred (though he could be impeached).

I didn't like the idea of criminal prosecution for Bybee and Yoo, but I like the idea of ethics sanctions even less. At least in a criminal action, the prosecution needs to make out a case and the standard for culpability is reasonably high. By contrast, it's far easier manipulate a grievance proceeding to obtain a desired result because the standard of proof is so lax. 

What's your view? Is this matter appropriate for a bar grievance committee -- and how would you rule if you sat on the committee?

Posted by Carolyn Elefant on May 7, 2009 at 02:32 PM | Permalink | Comments (3)


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