SF Bar Seeks Stimson Inquiry:
The San Francisco Chronicle reports that the Bar Association of San Francisco will file a request with the State Bar of California that it invetigate whether Cully Stimson violated the rules of professional responsibility with his remarks about private law firms that represent Guantnamo detainees. According to the story, Stimson is licensed in California. While I have been quite critical of Stimson, I am skeptical that this investigation will produce any formal sanction against Stimson. (LvHB)
UPDATE: I think it is worth quoting Northwestern law professor Steven Lubet from the comments below:
The bar investigation of Stimson is a manifestly bad idea. While it is not frivolous to suggest that his conduct was "prejudicial to the administration of justice," a disciplinary proceeding will still do more harm than good. If anything, Stimson's remarks prompted the Attorney General to defend publicly the principle of universal representation, which is a good thing.This sounds about right to me.
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A disciplinary investigation against a lawyer by itself is a serious matter. It distracts the lawyer from his normal duties to his clients and can hinder him from zealous representation. When used improperly, even the mere investigation can exert a chilling effect on the most dedicated of attorneys, who cannot risk loss of a license (and thus their livelihood). And that's leaving aside the expense issue; not all attorneys can afford to just drop several thousand dollars on representation of their own, just like that.
Bar discipline committees need to keep this in mind before cavalierly embarking on one investigation after another. There needs to be a better check to keep them honest and accountable for the effects of their decisions.
Are you saying that you don't believe that a lawyer who attempts to organize action to strip members of the public of the benefit of legal protection for his own ends, and potentially at a profit to himself, isn't an unscrupulous or unethical lawyer, preying upon the public?
That's certainly how it looks from where I sit.
I don't understand. So is the conduct renounced as unethical by over 60 law school deans, not to mention repudiated by the attorney general and openly by at least two Republican ex-SG's that I can count somehow now the subject a "political vendetta" by the california bar?
I'm sorry if what the California Bar is doing upsets you - you know, trampling all over the poor defenseless DoD here.
The remarks of Charles "Cully'' Stimson, deputy defense secretary for detainee affairs, contradicted "our duty to represent the defenseless and the oppressed,'' said attorney Nanci Clarence, president of the San Francisco association. She said the association was proud to have members who represent Guantanamo inmates.
No such duty exists in the California rules of professional responsibility. Surely every member has a duty to zealously represent a client once representation is undertaken, but it is absurd to suggest that such a duty exists independent of that choice. The SF Bar then bootsraps the argument that Stimson's remarks somehow interfere with their duty. Absurd. His remarks, while not particularly politically astute, are well within his rights as a California lawyer to make. Maybe not within his rights as Justice Department employee, but that is a different issue. There is simply no rule that encompasses his remarks.
This type of political grandstanding by an organization hardly affected by Stimson's remarks weakens the public response to real ethics investigations against lawyers who may have actually violated their ethical duties (Nifong).
For the above commenters. Legal ethics - the rules we must live by as lawyers - are the bare minimun. Breaking them is subject to sanction. Law professors and ex-SG's are talking about ethics in a more broad sense. What should he have done.
It's not the DoD that's being trampled here; its an individual lawyer, who might get help from the DoD on this--or the DoD might just distance itself from him and let him twist slowly, slowly in the wind.
Yes, the DoD can take care of itself, but so can the white-shoe law firms that Stimson targeted. Yes, what he said was wrong and offensive, but bringing bar discipline charges in response smacks of politically-motivated prosecution.
He spoke words. He advocated a position, a wrong position, perhaps, but he only advocated it. He did, actually, nothing.
Beyond that, I agree with DavidB's and Seamus' points.
A similar question can be asked about limited liability companies. Does not the grant of limited liability imply an obligation beyond stockholder value maximization? (Like making sure that employees have health insurance for example?)
Ironically, the California Bar will do to Stinson precisely what they are accusing him of-- attempting to silence/intimidate those who's views you dislike.
On the other hand, I don't see that California's rules contain the section on maintaining the integrity of the profession, and the conduct does not appear to violate any of the other rules.
Brings to mind a similar quote from the movie "Bananas" followed by: "But I don't wanna cast no aspersions."
Two can play at this game. Next time we read of something outrageous by a left wing member of the bar, let's all file complaints with his/her state bar association.
Let the greivance wars begin!!!
Several decades ago, the District of Columbia bar -- at the instigation of Warren Burger, then chief judge of the DC Circuit -- entertained a complaint against Monroe Freedman based on his academic writing (in which he provocatively suggested that lawyers might be ethically obliged to "lie for their clients").
The complaint against Freedman was appropriately dismissed, as should be the complaint against Stimson.
(I am working from memory re the Freedman case; apologies if i got some of the details wrong.)
But this is NOT what he did. He did not try to "prevent" anything. No force of law was used or even suggested to be used.
What he tried to do was call the attention of some of these lawyers' clients (the paying ones) to the pro bono representation by the very same firms of persons who in all likelihood wish to cause the paying clients harm -- and by harm is meant not the usual harm to a client's legal interests (e.g. having one's patent invalidated), but actually physical destruction.
I think all would agree that in this situation a paying client would have the right to complain or even threaten to move its business if its firm continue to represent persons whom it believes are inimical to its interests.(Suppose a business has suffered harm from organized crime. It would certainly be within its rights to insist that the criminal department of its law firm not defend the very criminals who have caused it harm.)
If the client has the right to do this, then Mr. Stimson certainly may call their attention or even encourage these clients to exercise that right.
Not all the detainee-oriented lawyers are in big firms; as an amicus for the Hamdan case is the DC Circuit and the USSCT, and a private lawyer in a one-person firm, I fall outside the scope of protection of big firms.
Furthermore, it is individual lawyers at big firms (whose associates leave at the rate of say 30% per year) who were and are besmirched by Stimson.
If the SF Bar could remove the stigma, I would support it fully. But the bar prosecutors cannot unring the bell, so the best approach is (in my view) to move on.
If the voting public, which has heard a sort of mea culpa from Stimson, still feels strongly about the matter in 2008, it can of course vote the current administration out of office.
The San Francisco Bar's sudden attachment to legal rules is very ironic, given that they gave a medal to one of their own officers for attacking California's Proposition 209 (now Article 31, Section 1 of the California Constitution), which banned racial preferences in California. If you bring a lawsuit challenging racial preferences under that law, which was upheld by a federal appeals court in 1997, you get ostracized in the San Franciso legal community.
It's ironic how the San Francisco bar believes that no one is supposed to hold the fact that a law firm is defending terrorist suspects against it, even though defending conservative or even moderate causes gets law firms ostracized and blacklisted by bar associations and legal consortiums.
The Maslon, Edelman law firm in Minneapolis, which has represented minorities in many pro bono cases, and is full of competent, well-rated lawyers with happy clients, experienced such reprisals from the bar and liberal corporate counsels after it allowed a few of its lawyers to bring a challenge to two of the University of Michigan's affirmative action policies, one of which was found to be unconstitutional.
The Supreme Court struck down one of those two policies by a 6-to-3 vote (Gratz v. Bollinger (2003)), while narrowly upholding the other by a 5-to-4 vote (Grutter v. Bollinger (2003)).
The Maslon law firm has been punished ever since for providing legal representation in that case. It has been excluded from law firm recruiting consortia, and punished by liberal corporate counsels, for the stated reason that it allowed some of its attorneys to work on the University of Michigan cases (even though it has also provided pro bono representation to minorities in many cases).
The position in the Michigan cases that the Maslon law firm took was partially successful, perfectly respectable, and perfectly consistent with American values.
Indeed, the voters of Michigan overwhelmingly voted to ban affirmative action in a November 2006 referendum, in large part to prevent the University of Michigan from continuing to practice race-based affirmative action.
Moderate voters overwhelmingly voted to ban affirmative action, even as they reelected a Democratic governor and Senator at the same time.
Yet the Maslon law firm is being punished for bringing two well-grounded lawsuits, one of them successful in the Supreme Court, even though its position is obviously in accord with the sentiments of mainstream voters and many judges as well.
And I don't see the bar association doing anything about that.
Apparently, politically incorrect clients are not entitled to competent legal representation, even when their constitutional rights are violated.
I don't see any evidence that any lawyer representing a terrorist suspect has suffered any analogous reprisals.
Indeed, law firms boast of such representation on their web sites and advertise them in their pro bono programs.
Representing a terrorist suspect is probably a trendy thing to do among lawyers, about two-thirds of whom voted against Bush in 2000 and 2004, and many of whom regard opposing the administration's policies (however foolish or wise those policies may be -- and I have criticized some of those policies myself) as a badge of honor.
A private censure? This is what, exactly? I know what a suspension is, and I know what a censure is. The only censure I know of are public (published). So a private censure is like double secret probation? The file is sealed?
Since I enjoy doing research on these ethics cases, please cite any case authority you found while doing research to defend your client (re: politically motivated prosecution). California would be nice, but I'll talke a model rules jurisdiction too.
Best,
Ben
Bar discipline does not exist for the purpose of preventing lawyers from "upsetting" people. If that were the standard, then I suspect a hefty number of regular, non-lawyer Americans would believe the white-shoe firms representing the accused terrorists should be disciplined, because those average people are upset by their actions. I'm regularly upset at slimy trial lawyers advertising on TV "did you get your check yet?" They're not (and should not be) subject to bar discipline, either.
Moreover, it would not be illegal for individual clients to do what Stimson called on them to do. Not wise, not right, but legal. Clients have no obligations to their attorneys or to the "administration of justice". I am free, as a client, to choose not to hire a lawyer known for regularly representing the mob, for example. There are very few, if any, circumstances I can imagine where a lawyer should be subject to professional discipline (such as having his license to practice his livelihood revoked) for publicly advocating a perfectly legal activity.
This is not the old days of the bar. Much as some might wish it, we will not turn back the clock to the days when the practice of law was a highly exclusive, tight-knit club. If the bar can't legitimately outlaw lawyer advertising (and it can't, according to the Supreme Court), how can it possibly be justified in imposing discipline against a lawyer who advocated a legal activity, no matter how wrong you think his call to action may be?
She is the one who is intolerant of dissent.
The San Francisco Chronicle quotes her referring to the detained terrorists as the "defenseless and oppressed," although big name law firms are representing them, and Osama Bin Laden and his ilk come from privileged families, not the "oppressed."
Nanci Clarence has advocated speech codes to suppress unpopular viewpoints, and defiance of state laws such as California's Proposition 209.
She is the one who has contempt for the law and the rights of unpopular individuals.
Good question, although there are permissible limits on attorney advertising such as laws imposing a short waiting period after an accident before attorneys can contact someone, contacting someone about a particular matter when there isn’t a prior relationship, promising a certain result or to be able to have undue influence, etc. Personally I thought Stimson’s comments were foolish (I find it hard to believe that any company is going to get rid of a blue chip firm that served them well because they’re representing detainees) but still within the boundaries.
Perhaps concerned individuals should each individually file a grievance against Ms. Clarence and the other officers of the San Francisco Bar for filing a frivolous complaint and bringing disrepute upon the profession of the bar by trying to silence and intimidate the lawful free speech of another citizen. If the California Bar suddenly had thousands of grievance complaints that they must process in some manner and if they call upon Ms. Clarence and the others to respond to them perhaps this kind of political grandstanding and abuse of the grievance process could be ended. It would seem to me that advocating the commission of criminal/unlawful acts by others is a far more offensive bit of speech than Stimson's lawful speech that was nothing more than a personal observation out loud.
Says the "Dog"
They have a statutory right even if they have nothing else.
The defendants in the Nuremburg Trials and the Japanese war crimes trials were all given the right to counsel. So was Eichmann. What lower standard is there which would justify denying access to counsel?
In my view, the apparent joint action (Defense and State) against anyone who has taken a position in favor of Hamdan et al. deserves attention in the voting booths.
As someone who takes unpopular stands for unpopular clients, I want the bar to have as little disciplinary power as possible over out-of-court attorney statements. The First Amendment worked in the Stimson case, and I'd like a chance to have it work if I say something the organized bar doesn't like.
The defendants in the WWII war crimes trials were afforded counsel. That doesn't mean they should have been. They should have been summarily executed.
True. But some innocent dude picked up and shipped to Gitmo because his neighbor wanted to collect the US bounty should get counsel.
The problem is that we don't know which of the people at Gitmo are innocent and which are terrorists. And all we have is the Bush Administration's word to go on.
I don't think that's a problem. If the Bush administration says Johnny Mohammed over there is a terrorist, and some ultra left wing pro bono lawyer says Johnny Mohammed ain't a terrorist, my money is on the Bush administration every time.
Before or after they were convicted.
Considering that the Bush Administration itself has released roughly half of those once imprisoned at Guantanamo, I'm guessing poker's not your game.
Your views are somewhat naive. I suggest you read about the case of Maher Arar, a Canadian citizen whom the US said was a "terrorist" so the Canadians handed him over to the US, who in turn gave him to the Syrians for a year's worth of torture. The Syrians returned him, saying he wasn't a terrorist, and Canada is now paying him about $10 million (canadian). Or you might be interested in the case of Khaled Al-Masri, a German citizen whom the CIA "rendered" to Afghanistan, apparently because the head of CIA counterterrorism "thought" his name sounded like that of a terrorist. There are many more examples, I suspect at Gitmo but we don't know because the media is denied access to them and the Bush administration has sought to deprive them of counsel or access to US courts to test the legality of their confinement.
As for Stimson, as a member of the California Bar and the BASF, I am fine with them investigating the Deputy Secretary of Defense for his concerted campaign to have corporations boycott the law firms who are representing these detainees. I do not know if his conduct was unethical, and suspect the State Bar will do nothing to him because of First Amendment concerns, but I think the issue is worthy of an inquiry. Mr. Stimson did not simply make one off-hand remark, he also went to the Wall Street Journal and pitched the same idea.
Nor apparently is common sense yours. If the Bush Administration itself is actively looking into the matter, and releasing those it believes have been cleared of wrongdoing, then the notion that it takes a bunch of HLS grads and Yalies to exonerate the innocent at Gitmo is much harder to believe.
With respect to the WWII war crimes defendants, their trials were merely political. They should have been executed in the field without a trial.
Cristopher,
I don't happen to care if noncitizens are treated poorly by the American government.
Here was your original point:
I pointed out at least 2 instances of innocent people whom the Bush Administration had wrongly thought were terrorists.
You responded that you don't care about the mistreatment of non-US citizens. That has nothing to do with my original point, which is that the so-Bush Administration is often wrong in saying who is and who is not a a terrorist. That is why I dont have any problem in according some minimum due process to these detainees--I think we should only be detaining people who are terrorists who threaten our interests. I guess your real point is you don't care who we detain, but presumably you know that is not a very persuasive argument on a legal blog.
By the way, your characterization of the big law firm attorneys representing these detainees as "ultra left wing" shows you really don't know much about these law firms or the practice of law at large corporate firms. They are hardly places of radicalism.
And how long does the Administration get to hold someone in error?
You do have some company in that view. Stalin favored it.
My legal argument is simple. There is no process due non-citizens by the U.S. government. That's simply correct, as a legal matter. (There are of course the occasional exceptions, such as the illegal alien with the intention to stay here, but those exceptions aren't relevant here.)
And this has nothing to do with torture, and I express no opinion on that question. It has to do with whether captives in Guantanamo have the right to counsel. They do not. Because they do not, there is nothing even arguably unethical about complaining about those who provide them counsel.
Stalin also favored fallacious arguments, just like Mark Field. :-)
It would take an ultra left wing lawyer to represent a terrorist.
How do you know each of the Gitmo detainees is a terrorist? Because the Bush Administration says so? This administration has made many other assertions that turned out to be false, which is why most Americans don't trust it anymore.
As for "ultra left wing lawyers," I assume you must be referring to the noted "radical" law firms Shearman &Sterling, WilmerHale and Mayer Brown. A bunch of crazy lefties who are subverting our capitalist way of life while, simultaneously, representing noted "radical" institutions like Merrill Lynch , Bank of America, and Goldman Sachs.
I don't know that they are all terrorists. I bear no ill will towards the lawyers who represent the actually innocent. But we both know plenty of actual terrorists are getting hotshot lawyers. That's what I object to.
You can't tell much about a lawyer's political views based on who he represents for money. You can tell a lot about his views based on who he represents for free.
What good will a "hotshot lawyer" do a terrorist? If you are correct that the person you believe is a terrorist who has no rights, the only thing the "hotshot lawyer" can get is an eloquent court opinion saying that his or her client is a terrorist who has no rights.
And Mr. Cooke,
I think you missed Jeremy's sarcasm. As to the mere investigation of Stimson being OK, I see your point, but I hope the result is a ringing endorsement of his right to advocate repulsive positions. The First Amendment worked here.
This was Mr. Stimson's very point.
So what does this say about the firms that represent pro bono both Gitmo detainees and US miltary people? Many bar associations have organized military support pro bono networks to help military families with things like wills, powers of attorney and other things people who are out of the country for extended periods need.