Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Tuesday, June 20, 2006

Constellation: Three Sparrows

Three sparrows
Perched in a flaming bush.

When will the fire leap
To your shade tree;
When will you fight
The spreading fire.

Constellation: NTA
/ \
N - A
. .


1. To introduce you to the ABA Rules of Professional conduct.

2. To show you how to compare open source information to the model rules.

3. To assess whether the model rules are or are not sufficient to guide attorney conduct.


Today you will have the chance to practice gathering information, reviewing standards, and evaluating whether the American Bar Association [ABA] system of professional ethics really works.

You will be given some scant information. Your job is to decide how to proceed, then evaluate whether certain conclusions are or are not valid.

At no time are you instructed to engage in any illegal behavior or harassment of any of the people involved.

This is only practice.

If you decide to take action, make formal reports, or notify other personnel of this practice, you are free to do so.

We only ask that you mention, "Constellation" in your messages so that others know what this relates to, and that this is just a practice.

Where this is going

With time, you will have a better understanding of the process to gather information related to alleged attorney misconduct, whether their actions do or do not constitute war crimes, and whether the ABA system is or is not sufficient to disbar those who threaten the Constitution.


Today's practice is to show you how online information can be used to assess the adequacy of the ABA system.

Today, you will be given a scenario, connected to real information, and your job will be to review the ABA standards, and make judgments.

You will be asked to do the following:

  • Review the online behavior and comments

  • Compare the public information to the standards

  • Consider whether the public conduct does or does not warrant concern

  • Make judgments and recommendations of what should be done in the future to more quickly identify, screen, and mitigate apparent attorney misconduct.

    * * *


    Today's practice involves three people. We will not mention them by name, but they are well known to you as bloggers.

  • Blogger A, living in California

  • Attorney T, living in Tennessee

  • Attorney N, living in New York

    Keep in mind as you read this information, the three are well known to each other. As evidence of this, you can consider this online discussion, where at least two of the bloggers have shared a combined forum.

    * * *

  • Blogger A, contact information is here

  • Attorney T, contact information is here

  • Attorney N, contact information is here

  • Disciplinary Board in state T is located here, the rules are here

  • Disciplinary Board in State N is located here, rules are here

    * * *

    The Players are well known to each other

    Sample discussion here

    Sample questions of to attorneys related to war crimes, and their refusal to report peer conduct after no evidence of WMD was found [ Click ]

    Point: It's one thing to argue for a war; it's quite another to take a step back and consider, "What ethical duty do I, as an attorney, have to report the misconduct by government attorneys who created these ruses, did nothing while the evidence was fabricated, and silently watched the Geneva Conventions and US Constitution getting trashed.

    If there is no evidence of WMD, then the next step is for the legal community to review what role, if any, the attorneys had in that illegal war; and what reporting duties, if any, the legal profession had which they failed to execute once the illegalities were known, and the unlawful war was known to be linked with US Government attorneys."

    Online Comments

    1. Blogger C Alleges Attorney T Misrepresentations here

    2. Attorney N knowledge of Attorney T Alleged misrepresentations here

    3. Alleged Attorney N public comments about Attorney T, casting doubts about Attorney T's ethics here


    Attorney N has failed to timely report, as required, an issue related to a peer to the appropriate disciplinary board; is making public comments undermining confidence in the legal profession.

    Attorney T has made misrepresentations in a public forum, and the public knows that these misrepresentations are made from a person in the legal profession.

    * * *

    Take a moment to review the professional standards that apply to Attorney N and T. As an example, notice the NY standards:

  • Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation

  • Violate a Disciplinary Rule [Reporting requirement]

  • Circumvent a Disciplinary Rule through actions of another

    Also consider the attorney duties: "Recognition of Legal Problems EC 2-2: The legal profession should help the public to recognize legal problems because such problems may not be self-revealing and often are not timely noticed."

    Unless otherwise specified in the advertisement, if a lawyer publishes any fee information authorized under this Disciplinary Rule in a publication which is published more frequently than once per month, the lawyer shall be bound by any representation made therein for a period of not less than 30 days after such publication.Ref

    "The public interest is best served in legal matters by a regulated profession committed to such standards" Ref

    * * *

    Attorney Conduct

    Your job is to review the online comments and discussion. Notice there are allegations that an attorney has not been truthful. Your job is to consider whether this conduct [is, or is not] a concern.

    * * *

    ABA Effectiveness

    Consider the following points. If the ABA is not concerned with this conduct, why should the attorneys make online comments on the subject?

    However, if the ABA is not concerned, and the online commentary continues, can we say that the rules of professional conduct are sufficient to discourage what might be viewed as unethical conduct?

    Conversely, if the conduct is not appropriate, and there has been no formal report, what sanctions are there that are appropriate for the attorneys who are making disparaging comments, but are not using formal channels?

    * * *

    Attorney Rules

    Let's consider the Model Rules, in general. They are designed to increase public confidence in the legal profession, maintain high standards, and ensure the public is served by professional conduct.

    Consider the model rules related to ethics, and candor.

    A. Are these rules applicable to the online world?

    B. Should there be times when the oath of office, and professional rules should not apply to attorneys?

    C. Who is to decide when the rules of professional conduct should or should not apply?

    D. If the rules of professional conduct "do not apply online," why are the attorneys permitted to use heir professional affiliation while online?

    * * *

    This situation and these comments

    Let's review the specific comments.

    1. How confident are you that you understand the full issue; do you need more information; are the attorneys and others involved in the discussion aware that their conduct is being monitored; and do they understand that their information and online conduct is being compared to professional standards?

    2. If you attempt to make direct contact for clarification, are the attorneys and others involved forthcoming in their responses; do their answers make sense; are they avoiding certain issues; do they accept that their conduct may cast doubt about their commitment to professional standards?

    3. Are the attorneys comments made with full knowledge that the attorneys are bound to the model rules; why are the attorneys making comments that raise doubts about the ethical conduct and integrity of those in the legal profession; does this conduct raise or diminish your confidence in the legal profession?

    * * *

    Applying the Attorney Rules to this situation

    Let's consider the model rules in each state, and consider some issues.

    1. Do the model rules cover this situation; are there ethical issues which the current rules are insufficient.

    2. Does the ABA have a plan to quickly review this matter, and resolve the issues?

    3. If this mater is outside what the ABA is willing to review, yet the conduct raises questions about the integrity of the legal profession, what does the ABA need to do to ensure a credible oversight system; what is a reasonable timeline for this system to be in place; what is the ABA's plan to resolve this apparent oversight problem.

    4. Conversely, is there no issue, and the attorneys are publicly making comments on issues which are frivolous, and the public should walk away with the impression, "These attorneys are wasting time on frivolous matters."

    * * *


    Discuss your views with others.

    A. Do you think the ABA standards need to be modernized?

    B. How responsive was the ABA state-level to your concerns; did they acknowledge receipt of your letter

    C. Did you notice any change in the attorney conduct

    D. Do you understand how the model rules can be used to evaluate whether discussion and information is or is not a sign of a problem.

    E. Did those involve respond to your questions and concerns; were you ignored; do you have any feedback from those involved that you would like to share.

    F. What are you views of the legal profession; are their rules sufficient to raise the standards of professional conduct; are the rules ignored.

    G. What should happen to the attorneys involved; should they be asked to submit written statements and their plan to resolve this issue off-line; or should the discussion continue, and the public enjoy reading more about their concerns.

    H. Based on your review of war crimes, inaction, malfeasance, are there issues here which need to be reviewed; are you clear on which information attorneys have a duty to report; what excuses to attorneys give to not report information to the disciplinary board.


    Today, you've had the chance to review the online behavior of three people, two of them are attorneys.

    There have been allegations made about unethical conduct, misrepresentations, and conduct that may or may not undermine confidence in the legal profession.

    Your job has been to review the model rules, compare the rules to what is known about the two attorneys, and then make some inferences about what the ABA should or should not be doing.

    Conversely, if the ABA is not willing to take action, there are three possible conclusions:

    1. The attorneys are spending time on frivolous matters;

    2. The model rules are insufficient catalysts

    3. The issues are important, but the attorneys are unwilling to engage in the required reporting.

    Either way, this is a professional integrity issue. The attorneys involved cannot simply make accusations. Their job is to rally their evidence, and use the system they have freely taken an oath to uphold: The American Bar Association system of professional conduct.

    If that system is not sufficient to ensure integrity in the legal profession, then the public should not be surprised to learn why the attorneys are making the comments they are making -- both in making allegedly misleading comments; and at the same time accusing their peers of conduct that raises questions about their professional integrity.

    If the Attorneys do not wish to have their conduct examined relative to their legal professional standards of conduct, then they need to refrain from making disparaging comments about their peers, and removing their professional legal association with their web content.

    These attorneys have freely chosen to link their content with their professional association. We can only conclude that they intended for their comments to be more than a simple personal view; they intended to use the full force of their legal credentials to justify public confidence in their remarks.

    That said, then they have a professional obligation to ensure that their conduct online meets the standards they have feely chosen to follow. However, there is a problem. rather than using the private complaint system of the ABA state disciplinary board, these attorneys have decided to publicly comment on the integrity of their peers; not use the formal system; and not do what they should be doing: Handling this issue in-house, behind closed doors.

    now that they've opened the doors, it's our opportunity to use this discussion to explore the nature of their conduct, and understand why attorneys will do what they do:

  • Take an oath they do not plan to follow

  • Swear allegiance to a document they are not serious about

  • Agree to make reports of misconduct, but not do so as required

  • Publicly disparage other attorneys, but refuse to use the professional reporting system for discipline

  • Engage in conduct that raises questions about their suitability as an attorney, and their commitment to their oath

  • Engage in conduct which undermines the public confidence that they are serious about their professional obligations, oath, and their standards of conduct.

    What you can do

    1. Discuss these issues with your friends.

    2. Encourage others to compare the ABA model rules to the online conduct and information you read about and from attorneys.

    3. Discuss your concerns with your elected officials:

    [a] Whether there needs to be a better oversight system of the ABA to ensure there is a credible investigation, monitoring system in place;

    [b] Methods of sampling of on-line attorney conduct and behavior to ensure the ABA is reviewing, evaluating, and where necessary bringing sanctions against attorneys for their conduct which violates the model rules;

    [c] An ABA-system in place which credibly responds to concerns that the legal professional has ineffectively managed complaints related to attorney involvement, and association with, war crimes, illegal war, and other unlawful activity

    4. Contact the people involved and share your views on their approach to ethical issues; whether you believe they are appropriately handling the ethical issues; or whether you believe that there are systems in place that, by their conduct, appear to be meaningless in ensuring ethical attorney conduct.

    5. Make it known to the people involved that you expect them to meet their professional obligations seriously; if they have a concern about the conduct of their peers, or themselves are engaged in questionable behavior they either need to stop, or submit to public discussion of their apparent reckless disregard for the professional obligations.

    6. make it known that it takes many people to engage in, permit, and refuse to stop unprofessional, illegal, or unethical conduct: The primary actors; those who know the standards but refuse to enforce them; and those who have public standing, but are unwilling to challenge the failed systems.

    7. Make it known to those involved that you are aware of the professional obligations; that you take their oath seriously; and their job is to understand that you will hold them to that oath, even if they plan to treat their professional obligations as discretionary.

    8. Inform those involved that they have made public comments questioning the integrity, conduct, and ethics of others. They have to explain why they are not using the formal channels; conversely, if this is "not worthy of ABA review," why are they bothering to waste the public's time with issues which the disciplinary board refuses to review; is there something they hope the public will do that the ABA refuses to do; or are they simply admitting that the oversight system is meaningless, but they have no capability or understanding how to specifically ask what they want.

    9. Ask those involved what they want:

    - Do they want someone to not do something;
    - Do they want someone else to solve this problem;
    - Do they want a new regulatory system;
    - Do they want someone to provide leadership;
    - How do they envision this problem being resolved;
    - What is their view of the problem and a solution;
    - Do they want the public to respect their choices and comments;
    - Do they want the public to consider their comments, but ignore their apparent failure to comply with professional obligations to report peer misconduct?
    - Something else?


    What reforms are needed?

    What is your view on Addington, NSA, and DoJ/Gonzalez in light of this, "A. A public prosecutor or other government lawyer shall not institute or cause to be instituted criminal charges when he or she knows or it is obvious that the charges are not supported by probable cause." [ Ref ]

    * * *

    Application: Applying what you learned above to International Law, Treaties, and Geneva Conventions

    Given what you know about the public statements made about those who are being held in Guantanamo -- without charges, and are for the most part unrelated to terrorism -- what can be said of the 06 Feb 2006 testimony by Gonzalez about those being held without charge, in light of the following:

    B. A statement ordinarily is likely to prejudice materially an adjudicative proceeding when it refers to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration, and the statement relates to:

    1. The character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness.

    2. In a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person's refusal or failure to make a statement.

    3. The performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented. [Consider the secret trials in Guantanamo, without any evidence -- How does the legal profession explain the lack of reporting on the DoJ-DoD-White House counsel apparent disregard for this rule of professional conduct; how should the DC bar rules be modernized; what use is it to have a state-level regulatory system that refuses to sanction attorneys for violation of the Article 82 in the 1929 Geneva Conventions?]

    4. Any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration. [Consider Gonzalez' statements related to the reasons people are being held in secret locations, without trial, and no access to lawyers.]

    5. Information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial trial. [Consider Addington's 2002 statements to General John A. Cooper that Geneva was not applicable; and General Gordon's decision to bypass Addington and go directly to the NSC on his concerns about the detentions.]

    6. The fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty. [What is to be said of the American legal system that refuses to bring charges; there is no statement; and there has been no presumption of innocence; rather, we've had the opposite -- punishment without trial; accusations without evidence; and no charges. Addington, Gonzalez, and Yoo are linked this conduct.]

    Your Views

    A. What should be done when attorneys refuse to prevent violations of the law; and choose to remain associated with illegal conduct.

    B. What is the purpose of having an attorney take an oath to the US Constitution (which includes all treaties), but that oath is not put into practice?

    C. What is to be done to ensure attorneys ensure the laws are enforced, regardless whether they are or are not an attorney with a client in the dispute.

    D. How does the ABA justify public confidence that they can "self regulate," yet the pattern of abuses was sanctioned by licensed attorneys who attended ABA-accredited institutions/passed ABA-standards at the state level?

    E. Can the US call itself a "nation of laws" when the Congress refuses to ensure that illegal conduct is stopped and punished?