Category Archives: Law: Ethics

Trump’s Lawyer is not a Member of the DC Bar?

NYT reports on Trump’s personal lawyer Marc E. Kasowitz giving what looks like awfully convenient (for him and for Trump) legal advice to White House staffers that they don’t need to lawyer up. As the NYT explains:

He told aides gathered in one meeting who had asked whether it was time to hire private lawyers that it was not yet necessary, according to another person with direct knowledge.

Such conversations between a private lawyer for the president and the government employees who work for his client are highly unusual, according to veterans of previous administrations.

Previous administrations tried to coordinate the activities of private lawyers before letting them interact with aides. Jane Sherburne, a White House special counsel who managed ethics issues during Mr. Clinton’s first term, said Mr. Kendall was not allowed to meet with White House staff members until “we had gone through a whole exercise of having conversations with employees ourselves, talking to them about whether they wanted to retain their own counsel and telling them they didn’t have to talk to Kendall.”

Under ethics rules, Mr. Kasowitz cannot interview any official who has hired a lawyer without that lawyer’s permission, meaning it would be in his interest if administration aides did not hire their own lawyers, experts said. “It is probably easier for him to represent Trump if he doesn’t have to deal with a bunch of other lawyers,” Ms. Sherburne said, adding that she believed it was inappropriate for Mr. Kasowitz to discourage aides from hiring their own counsel.

Richard Painter, the White House ethics lawyer under President George W. Bush who now teaches at the University of Minnesota’s law school, said that in a worst-case scenario, a staff member might listen to Mr. Kasowitz’s advice and “end up thrown under the bus.”

What the NYT don’t mention, however, is that Kasowitz does not appear to be a member of the DC Bar. At least according to Kasowitz’s homepage at his law firm, Kasowitz is only admitted in New York. I don’t think that is any obstacle to advising the President on matters of federal law, but it might be an issue on advising the staff as to whether they need representation?

Posted in Law: Ethics, Trump | Leave a comment

John Oliver Explains the Clinton e-Mail ‘Scandal’ (Updated)

…and as a bonus explains the Clinton Foundation controversy too.

This will undoubtedly enrage certain people.

Update (10/2/16): What the FBI Files Reveal About Hillary Clinton’s Email Server

Posted in 2016 Election, Law: Ethics | 2 Comments

Did AG Eric Holder Commit Perjury? Whose Head Should Roll?

David Kravitz’s Wired article, How Obama Officials Cried ‘Terrorism’ to Cover Up a Paperwork Error begins like this:

After seven years of litigation, two trips to a federal appeals court and $3.8 million worth of lawyer time, the public has finally learned why a wheelchair-bound Stanford University scholar was cuffed, detained and denied a flight from San Francisco to Hawaii: FBI human error.

FBI agent Kevin Kelley was investigating Muslims in the San Francisco Bay Area in 2004 when he checked the wrong box on a terrorism form, erroneously placing Rahinah Ibrahim on the no-fly list.

What happened next was the real shame. Instead of admitting to the error, high-ranking President Barack Obama administration officials spent years covering it up. Attorney General Eric Holder, Director of National Intelligence James Clapper, and a litany of other government officials claimed repeatedly that disclosing the reason Ibrahim was detained, or even acknowledging that she’d been placed on a watch list, would cause serious damage to the U.S. national security. Again and again they asserted the so-called “state secrets privilege” to block the 48-year-old woman’s lawsuit, which sought only to clear her name.

The article includes a link to Attorney General Eric Holder’s declaration in Ibrahim v. DHS. It’s pretty awful — even worse than the article makes it sound. Here are the last two paragraphs (emphasis added):

16. On September 23, 2009, I announced a new Executive Branch policy governing the assertion and defense of the state secrets privilege in litigation. Under this policy, the Department of Justice will defend an assertion of the state secrets privilege in litigation, and seek dismissal of a claim on that basis, only when necessary to protect against the risk of significant hann to national security. See Exhibit 1 (State Secrets Policy),§ l(A). The policy provides further that an application of a privilege assertion must be narrowly tailored and that dismissal be sought pursuant to the privilege assertion only when necessary to prevent significant harm to national security. !d. § 1(B). Moreover, “[t]he Department will not defend an invocation of the privilege in order to: (i) conceal violations of the law, inefficiency, or administrative error; (ii) prevent embarrassment to a person, organization, or agency of the United States Government; (iii) restrain competition; or (iv) prevent or delay the release of information the release of which would not reasonably be expected to cause significant harm to national security.” !d. § 1(C). The policy also establishes detailed procedures for review of a proposed assertion of the state secrets privilege in a particular case. !d. § 2. Those procedures require submissions by the relevant Government departments or agencies specifying “(i) the nature of the information that must be protected from unauthorized disclosure; (ii) the significant harm to national security that disclosure can reasonably be expected to cause; [and] (iii) the reason why unauthorized disclosure is reasonably likely to cause such harm.” ld § 2(A). Based on my personal consideration of the matter, I have determined that the requirements for an assertion and defense of the state secrets privilege have been met in this case in accord with the September 2009 State Secrets Policy.

I declare under penalty of perjury that the foregoing is true and correct.

I think someone should lose their job over this. Perhaps that someone is the person who misinformed the Attorney General as to the facts of the case, perhaps not. In any event, Attorney General Eric Holder owes us all an explanation as to why that someone is not him.

Posted in 9/11 & Aftermath, Law: Ethics, Law: Right to Travel | 8 Comments

Legal Proceedings So Weird We Need Hunter Thompson to Cover Them

The first story, about proceedings in District Court in Tampa, FL was pretty weird and blackly funny, as lawyers scrambled to disassociate themselves with the proceedings in Porn trolling case thrown out for “attempted fraud on the court”.

Now Ars Technica ups the ante with the Minnesota sequel, Man charges porn trolling firm Prenda Law with identity theft: Says firm listed him as the CEO of a shell corporation without permission.

Hunter Thompson could really have done something with this material.

Posted in Law: Copyright and DMCA, Law: Ethics | Leave a comment

Justice Thomas’s Disclosure Problem

Crooks & Liars goes to town on the unfolding Supreme Court disclosure scandal: Clarence Thomas “Forgot” 20 Years of Disclosure? Really?. The author argues that there might even be felony exposure under 18 USC § 1001. I’m a little dubious, although it’s not the sort of law I do so I welcome comments from those who know this stuff.

And even if it’s theoretically right, there’s surely about a zero percent chance that the Obama Justice Department would act, or that the Tea Party House would indict.

Although I have to say that this all reminds me of the classic Steve Martin routine

httpv://www.youtube.com/watch?v=Xt9y1Dv7T4c

(Apologies for the silly cartoon version, but it is all I could find on YouTube.)

Posted in Law: Ethics, Law: The Supremes | Leave a comment

‘Bar application denied for inability to pay law school debt’

It sounds horrible, and it almost is.

A former student directs me to this article in the Minnesota Lawyer, Bar application denied for inability to pay law school debt, which in turn leads one to the Ohio Supreme Court opinion in In re Application of Griffin, Slip Opinion No. 2011-Ohio-20.

The facts are almost as stated in the hyperventilating article: The applicant failed the bar three times, and applied to take it a fourth time. He passed the character and fitness scrutiny of his local bar association (often a formality), but the Board of Commissioners of Character and Fitness overruled that decision. The Board said that the applicant’s financial circumstances called into question his fitness to be a lawyer.

What seems to have bothered the Board is not simply the applicant’s debt but his failure to deal with it responsibly. Mr. Griffin had a large but hardly unheard-of $170,000 in student loans, of which $150,000 was for law school. But he also had $16,500 in credit card debt, and that debt has been delinquent since 2008; one creditor even has obtained a default judgment against him. He was working part-time at the Public Defenders Office, at $12/hour, hoping to land a full-time job if he passed the bar. Meanwhile, the credit card debt wasn’t being paid, and the strategy he planned was to consider declaring bankruptcy even though that would only clear up the credit card debt and not the student loans, which are not discharged in bankruptcy. That said, he hadn’t actually pulled the trigger on the bankruptcy, so the debt was still hanging over him and presumably accruing penalties and interest.

The article spins all this as the court deciding that law school debt keeps the applicant from becoming a lawyer, or that his decision to work part time at legal aid (in hopes of a permanent post after passing the bar) instead of getting a better paying, maybe non-legal, job, is the source of the adverse decision. How terrible to count this public-spiritedness against him!

Not so fast. The guy defaulted on the credit card debt two or more years ago. He didn’t work things out with the bank; he let one bank get a judgment against him. Lawyers quite often get into trouble by mishandling client funds either through inattention or through over-optimism that if they just borrow a bit from the client fund to tide them over, they can put it all back next week…. So while I don’t see this result as compelled, I can’t say the court is wrong to treat the credit card debt issue as a red flag. (The three bar failures don’t speak all that well for his organization either. Anyone can fail the bar once. Twice is bad.)

And note too that the Ohio Supreme Court doesn’t say Mr. Griffin can never attempt the Ohio bar again. They basically tell him to go clean up his affairs and then get back to them. That’s pretty mild.

Yes, passing the bar and getting a full time job as a lawyer would be one way to do that, and this decision blocks that option, so there is a Catch-22 element to the court’s offer. But I still don’t think it is unreasonable under the circumstances. Despite the Minnesota Lawyer’s take on the story.

Posted in Law: Ethics | 12 Comments