In the midst of the many characterizations of Alberto Gonzales, a number of terms come to mind: stooge, hack, liar, enabler. But the most important term is "attorney." If you pull out a typical code of attorney ethics, and compare them against the reported conduct of Mr. Gonzales throughout his term, the view of the canyon appearing to separate them is breathtaking, a Grand Canyon of pompous awfulness crying out for disbarment and disgraced departure if the reported facts are true and complete.
For purposes of this analysis, I will be using the Maryland Lawyers' Rules of Professional Conduct. PLEASE NOTE that Mr. Gonzales is not a member of the Maryland Bar, but since I am a member of that Bar I will use those rules for convenience. I am also a member of the D.C. Bar and their rules are quite similar, perhaps 90-95% the same in content and format, though not identical on a few minor details that are mostly not to relevant to someone in Mr. Gonzales' situation.
Most modern attorney ethics codes derive very tightly from the Model Rules published by the American Bar Association, which Model Rules are copyrighted. Statutes and court rules are not themselves copyrighted (though private code compilations can be to a limited extent) and I will use the non-copyrighted bare bones, no bells-and-whistles version from the excellent Cornell Law School Legal Information Institute, which I commend to all non-attorney Kossacks looking for the quick and dirty access to an unbelievable variety of legal resources: the finest on the Net or close to it, in my judgment.
The Rules of most states (including my example of convenience, Maryland) are broken into nine parts: a Preamble and then eight numbered sections.
- Client-Lawyer Relationship
- Advocate
- Counselor
- Transactions with Persons Other Than Clients
- Law Firms and Associations
- Public Service
- Information About Legal Services
- Maintaining the Integrity of the Profession
Some of these rules are "everyday" rules for all attorneys, while others are narrow in scope. Many rules apply only to prosecutors, others only to private attorneys. But some of the core rules apply to everyone at all times.
Rule 1.1: Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Basic, right? An attorney will be reasonably competent in which she or he is doing for a client. That means not necessarily knowing the Constitution by heart, but knowing it well enough to know that, if federal criminal law is your practice, the writ of habeas corpus against arbitrary or illegal confinement is a right that cannot be suspended except in time of rebellion or invasion when the public circumstances may warrant it of war (HAT TIP to commentor teacherken.) It doesn't mean that you have to have written a 75-page paper on the topic in law school, only that you were either conscious in Con Law I when the topic was covered, or got notes from someone who was conscious.
It means knowing that lying to Congress under oath is a federal offense, and that other attorneys in your employ will know that too. A reasonably competent attorney expects other attorneys to be reasonably competent most of the time.
Rule 1.2 Scope of Representation
(d)A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows in criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
Basic: an attorney cannot help a client pull off a fraud. Advising a client is protected by attorney-client privilege, but if the advice is to commit a fraudulent or criminal act, the attorney betrays both himself and the client. The definition of "fraudulent" varies but in general, fraud means to engage in deception that induces a third party to change his position or legal interest.
Rule 2.1 Advisor
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.
What this means is that an attorney may advise a client to consider politics in her advice, but this rule does not override the duty not to engage in fraudulent or criminal conduct or to assist or advise a client in doing same.
Rule 3.1 Meritorious Claims and Contentions
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer may nevertheless so defend the proceeding as to require that every element of the moving party's case be established.
Basically, you may not file garbage as a plaintiff or movant party's counsel, nor may you provide a bad faith defense, though "putting the plaintiff to his proof" is acceptable. This duty is intensified in the case of prosecutors as noted below.
Rule 3.2 Expediting Litigation
A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.
An attorney may not engage in bad faith dilatory practice, though the "interests of the client" phrase does provide some cover.
Rule 3.3 Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.
(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6 [confidentiality].
(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.
This one is a big one, and "tribunal" does include not only courts but also testimony before legislatures and administrative bodies, as noted below in Rule 3.9. Basically, you must not lie to Congress, if you misstate the truth you must so inform Congress and you must disclose law known to you that is adverse to your position if your opponent has not done so. You must also disclose facts which, if not revealed, would assist in their non-disclosure to your client committing a fraud or crime.
Rule 3.8 Special Responsibilities of a Prosecutor
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and
(e) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent an employee or other person under the control of the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 [Trial Publicity] or this Rule.
Leaving Gonzales aside, compare the leaky boat of Kenneth Starr's office against that of Special Prosecutor Patrick Fitzgerald,
Rule 4.1 Truthfulness in Statements to Others
(a) In the course of representing a client a lawyer shall not knowingly:
(1) make a false statement of material fact or law to a third person; or
(2) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.
(b) The duties stated in this Rule apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
Big one. Very big one. Third parties would include individual members of Congress as well as Congress as a whole; it would be covered in my judgment by both Rule 4.1 and the tribunal rules above.
Rule 5.1 Responsibilities of Partners, Managers, and Supervisory Lawyers
(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Maryland Lawyers’ Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Maryland Lawyers’ Rules of Professional Conduct.
(c) A lawyer shall be responsible for another lawyer’s violation of the Maryland Lawyers’ Rules of Professional Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
Setting aside the references to Maryland, supervising attorneys have duties generally and specifically to make sure that ethical rules get followed. So if an Attorney General's chief of staff is arranging a punitive hit list against attorneys who refuse to violate, say, the duties of a prosecutor not to charge without probable cause, the Attorney General arguably violated the rules of ethics unless he acts reasonably to kill (not enforce) that list.
Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Maryland Lawyers’ Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) knowingly manifest by words or conduct when acting in a professional capacity bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status when such action is prejudicial to the administration of justice, provided, however, that legitimate advocacy is not a violation of this paragraph;
(f) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Maryland Lawyers’ Rules of Professional Conduct or other law; or
(g)knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.
Well. I never.
Lying to Congress is a crime that reflects adversely on an attorney's honesty. It is definitely prejudicial to the administration of justice to fire a slew of attorneys for failure to bring political charges against opponents - arguably that is a textbook definition of conduct prejudicial, although attorneys have been suspended for crimes such as willful failure to file taxes, under the theory that attorney disrespect for the tax code lowers the esteem of the whole legal systenm. But lying to Congress about firing about 10% of the country's chief federal prosecutors, including prosecutors in the midst of intense, high-level investigations, is more obviously such a case.
Bill Clinton got suspended for 5 years in Arkansas for lying under otah about, basically, a fling. In Maryland, an attorney was once disbarred for putting slugs into a Baltimore parking meter. Less than $5.00 in parking time destroyed a law license. So how long do you think Alberto Gonzales would be likely to last without professional charges if he were a member of our Bar here in Maryland?
I don't claim to know whether Gonzales is guilty of violating the ethics rules of Texas. But I suspect lying under oath does not go down well there. But if that's what he did, i.e. Kyle Sampson is not lying when he said that Gonzales was intensely involved in the political decision making process behind the ASA political purge, then Judge (!) Gonzales may perhaps need an attorney himself in Texas and wherever he is barred. Federal courts independently license attorneys as well, but most state and federal courts will honor another jurisdiction's attorney discipline with reciprocal discipline in most cases. In other words, one disbarment or suspension usually cascades to all of an attorney's licenses with roughly similar results.
In the interest of fairness, I would invite Alberto Gonzales or any person in possession of contrary facts or arguments to correct me (and thanks to those who have done so) if I am wrong. Please do; sometimes I get the facts wrong. I do not wish to be accused of deceiving anyone, and I do NOT wish to besmirch the name of a fellow attorney inaccurately. I will correct and retract - PROMPTLY - if I have misstated a fact here; the ethics rules apply to me as well, as far as I am concerned even when I am not "on the clock."