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

Friday, July 28, 2006

Case Study: Energizing ABA Peer Reviews

This is not intended to be accurate or complete. This is merely a one-sided discussion from me to the general world.

This is not intended to make any comment on the professional qualities or abilities of anyone, but is merely intended to provoke public discussion on the American Bar Association, its standards for educational excellence, and the perceived credibility of that system to enforce professional standards.

This relates to the Ann Althouse-Mary situation. Ref

* * *

Ann Althouse is a distinguished law professor, having been widely acclaimed for her contributions and leadership in the law community. Her CV is far too long to recite, suffice it to say she is well respected in the legal community for her intellect, professionalism, and contributions to legal scholarship.

Putting aside her public figure status and her many accomplishments, this note hopes to explore the issues of ABA Professional Standards of Conduct as it relates to current and prospective members of the bar.

Having reviewed Althouse's blog in a cursory manner, and being aware of the comment moderation because of selective comments from Mary, there are a couple of issues.

Althouse has suggested that Mary, in identifying herself, might jeopardize her future employment prospects. This may be true, but is meaningless and speculative. Rather, it is more persuasive that if there are disparaging comments about a practicing attorney and member of the bar (Althouse), that those false and misleading statements be subject to suit.

Moreover, if Mary continues to make comments, it remains unclear why this information is not presented to the Bar where Mary may wish to present her credentials for admittance.

Regardless the legal options within the court and peer review process, Althouse has chosen (understandably) another route: To publicly comment on the comments. This is her choice.

* * *

Put aside the above, and let it settle for the moment. Let's consider a theoretical approach to the law, and the idea of peer reviews.

Central to the analysis is the question of who has the expertise and the credentials. Clearly, Althouse has a far larger résumé and list of credentials; Mary does not.

The issue before us is whether the ABA peer review process is effective. I suggest that Althouse (apparently) does not have confidence in the legal system, or the system of oversight. If she did, in my view and personal opinion, a far more prudent strategy would be to:

  • Let the comments remain for the public to see

  • Organize the information for Mary's (prospective) Bar to review

  • Issue a case and desist letter

  • Take action that would tend to inspire public confidence that the experts and professionals within the bar community believe that their peer review system and ABA Model Rules are enforceable and have teeth.

    * * *

    Let's get back to the instant case: Mary's Comments, and Althouse's reaction. Taking a broad sweep of the issues, we might be led to believe that Mary is the problem. Indeed, Mary is the one that is making comments.

    However, as we explore the ABA Model Rules, the issue is not simply whether someone in or out of the Bar does or does not do something; but whether their conduct tends to inspire confidence in the legal profession. More broadly, the Model Rules as they apply to lawyers are different than those that apply to the Court and Judges.

    Let's suppose, for the sake of argument, that Althouse may have in the back of her mind a desire to practice law not as an attorney, but as a judge. The issue before us is whether Althouse's conduct on her blog, as an attorney tends to increase public confidence that Althouse would or would not be suitable.

    The point is that we're not simply dealing with a blog, a law professor, and former student. The issue is broader: What is the public to expect of it's legal profession; does that legal profession take its standards of conduct seriously; and do the individual members' actions at all times send a message to the public that is consistent with the ABA goals: To inspire confidence in the legal profession, inspire professionalism, and see that the rule of law prevails as a governing value in America.

    * * *

    With that in mind, it is my contention and (uninformed) opinion, not necessarily widely held, that Althouse realizes that despite her legal training, she is not capable of all powerful things. Unlike her position as a law professor where she could "make or break" a student (for whatever reason), Mary's actions sends a clear signal: Althouse's reactions to her being powerless is the central issue.

    The law and the legal profession are creatures of human design, not nature. It is the objective of the law to organize civil society.

    From this juncture, the question is: Does the attorneys conduct rely more on the rules of the law, or that of the jungle.

    Ideally, what would be preferable is for Althouse to exercise her well known intellect, scholarship, and pursue matters that are lofty. On the other hand, she is free to engage in free speech, and comment on others actions, as have I.

    * * *

    Where do we go from here.

    At this juncture, I encourage the public and American Bar Association to jointly discuss before Congress the following issues:

  • Are the Bar Association Model Rules, as they are regulated at the state level, something that the public should have confidence work

  • If we are to believe that the peer review process is viable, what factors are getting in the way of that effectively guiding both the conduct, and perceived implementation and effectiveness of that oversight process

  • Should there be a formalized process for the ABA to collect information related to attorney conduct on the web, and formally present that to the State Disciplinary boards for prospective enforcement?

  • If someone identifies themselves as an attorney, and discusses publicly known information, what is to be said of that attorneys conduct that is upset at the public response to that public figure status?

    * * *

    As I see, there are two conflicting theories: The law and the fair comment of public figures.

    Althouse's problem is that by commenting (perhaps in another forum) information related to her personal life, she's exposed herself to a fair comment and unpleasant comment by those who know how to push Althouse's buttons.

    From a broad sense, we look not exclusively at the ABA standards of conduct, but other guiding principles: The standards of conduct that apply to educators; and the responsibilities community leaders have to provide and demonstrate leadership, civility, and integrity.

    Integrity, as I define it, is simply the consistently between one's actions, values, processional standards, and the results. It is not an issue of honesty; but an issue of harmony. Those with less integrity will point to standards, but in their personal conduct tend to have inconsistencies. The issue is not perfection; but the degree of resonance or discord.

    * * *

    Knowing nothing of the situation other than what is publicly available, we are left with some general conclusions and invite others to comment.

  • If you were in this position, what would you do?

  • If you knew that a former student, that might possibly seek entrance to a system that had professional standards of conduct, was engaging in this behavior, how would you ensure that your professional oversight process was given the deference due and permitted to conduct an investigation?

    It does not appear as though Althouse has a solution, thereby fueling Mary's inclination to find another avenue. Moreover, by moderating the comments, as opposed to shutting off the comments, Althouse hasn't solved the problem: Merely complicated her solutions, thereby fueling Mary's glee knowing Althouse has to spend time on Mary, and not on legal matters.

    * * *

    Going forward it will be interesting to see how this issue is resolved:

  • Does Althouse have a bonafide legal complaint related to invasion of privacy? It does not appear so in that Mary (apparently) is using information that is not private, but intimate, personal but otherwise not protected by privilege.

  • Does Althouse have a demonstrated track record of legal excellence? Indeed, but what is curious is despite her legal qualifications, what's curious with the Mary situation is that Althouse appears to be lost in the confusion: How to best manage the issue, what would tend to resolve the matter, and how best to proceed.

    At this juncture, it doesn't appear as though Althouse has a confidant that is sufficiently adept in XML, blogs, intellectual property, rights of publicity, and the model rules. Rather, it appears as though Althouse has tended to insulate herself from the expertise that is beyond what she appears to comprehend the issue to be.

    From this perspective, this is not an issue between Mary and Althouse; rather, this is a conflict Althouse has with the professional standards. Althouse appears to lack confidence in her peers to either consult with them, or see that her peers conduct independent fact finding.

    Either Mary's conduct is or is not actionable by her prospective Bar. What Althouse is doing doesn't solve the problem, but merely stirs the pot.

    It would be preferable, although not required, that someone from the ABA review the situation and then craft national guidelines that the States would adopt related to, inter alia

  • Attorney online conduct related to honesty, conduct that is or is not consistent with the Model Rules;

  • Methods the ABA will use to gather information for purposes of disbarment or sanctions;

  • How online behavior and writing may be used as a screening tool for current and prospective attorneys.

    * * *

    The core problem with the above approach is, as it appears Althouse questions, is that the ABA itself is also guilty of engaging in online conduct that is not professional. If you look at this IP number, you'll see that the ABA staff does what Althouse finds most annoying with Mary: Inappropriate conduct.

    The broader issue, as it appears Althouse is concerned with, is that the ABA is not in a position to provide leadership because the ABA, through silence, and lack of leadership not only condones conduct like Mary's, but refuses to do anything about ABA staff that engages in the same conduct.

    Althouse appears to be caught in a dilemma. the real solution is for the ABA to provide leadership on attorney standards of conduct, both on the job, and off. Bluntly, this has everything to do with the failed ABA leadership in ensuring that DoJ Staff attorneys are competently trained and willing to assert their 5 USC 3331 obligations, and ensure that their Article 82 Geneva requirements (to see that Geneva is enforced) is taken seriously.

    Again, the DoJ Staff engages in the same on-line conduct which the ABA also condones and refuses to sanction: Commentary on non-official issues at a time when Attorney General Gonzalez said the DoJ Staff was "too busy" to get FISA warrants. Again, the point is simple: What the Attorney General has told Congress is at odds with the electronic evidence related to the attorney timelines.

    This is more than an issue of the ABA, but whether the legal community is willing to assert the standards and the rule of law against its peers and the President of the Untied States.

    * * *

    Althouse's online dance with Mary is merely a symptom of a larger, entrenched problem the American Bar Association has: A loss of confidence that the rule of law can prevail over abuse of power by the Executive.

    Althouse would gain public acclaim if she were to rise above the issues, and spend time educating students on those principles she wants to see asserted: The rule of law and professionalism. What we see is something that is perhaps slightly different.

    * * *

    These are my expectations:

  • Althouse needs the support of the legal community. Her peers are not encouraging her behind the scenes to act in a manner that is more consistent with the Judicial Cannons, something Althouse may wish to keep open as an option.

  • Althouse needs to be given the time and space to resolve this issue of publicity. If her decision is to not litigate against Mary, then the public will have to accept that someone has decided to rise above the issues and take the high road. this should be applauded.

  • Mary should be recognized for having brought to light an indicator of a problem that is deeply rooted in the White House. It is the job of the ABA to use this information as feedback to marshal its resources and assert the rule of law. Mary is not the problem; she is merely the catalyst and reminder there is a problem. The prudent use of energy is to direct your frustration and collective annoyance not at a lone former law student, but at the abusive DoJ Staff Attorneys and White House which continues to ignore the law and professional standards of conduct.

    It would please me if the ABA, House Judiciary Committee, and educators would openly discuss the model rules of professional conduct as they relate to peer review reporting standards; and the apparent breakdown in the DoJ OPR as it relates to the continued DoJ Staff attorney support for Geneva Convention violations. We need not spend much time on the DoJ OPR being blocked from doing their job. Rather, the point is to find what a solution is.

    * * *

    The American public has three months until the November 2006 election. We have to make a decision.

    Our problem is that, as Althouse has demonstrated, it does not appear as though our peers may do the right thing, or that the system will work. The ABA leadership in the wake of the singing statements has stated that the public needs to be educated. I would tend to believe that the public needs not education; rather, the point is that the ABA needs to provide leadership and directly target with peer reviews the White House, DoJ, and DoD Staff attorneys who apparently defy their 5 USC 3331 obligations.

    I would like the ABA to take the broader approach:

  • 1. Realize that we are not in unprecedented times, but history guides us that there are solutions that humans can devise to address these problems.

  • 2. Where something has failed, it can be either fixed, scrapped, replaced, or reformed.

  • 3. If the system will not respond, then we must devise a system that will work.

  • 4. Where the system has failed, we can either choose to hope that the failed system will on its own "come around" to doing what it, by its failure, cannot do

  • 5. Your peers require leadership, investigation, sanction, and discipline. Where the Geneva conventions are clear and the DoJ-DoJ staff has ignored those requirements, then the ABA needs to support war crimes indictments against the DoJ Staff that have actively planned, supported, and failed to stop illegal activity. The precedent is Nuremburg and the German war crimes trials spanning many decades.

  • 6. The rule of law will prevail. The American people can comprehend this information. The fastest way to educate the public on the law is to show that all people, even the DoJ Staff, are subject to the law.

  • 7. The Executive may have privilege, but Nixon shows us that privilege is not absolute. Rather, there is always a loose end which comes undone. One loose thread was the Downing Street Memo; another was the revelation of the NSA illegal activity. The issue isn't the size of the problem, but the leadership to marshal the resources to attack the problem: Abuse of power.

  • 8. The example the ABA shows not simply in words, but actions speaks volumes. The public has assented to imperfection; it is time the ABA admit its sins, clean house, and then point the DoJ Staff to the professional standards and require them to recertify they are in compliance, or risk being disbarred.

  • 9. The issue here isn't simply to defeat a President, nor compel him to do what he is not willing to do: Assent to the rule of law. Rather, the other avenue is to deny him the means that enable him to do what he is doing: Defy the law without sanction. the way forward isn't simply to investigate the President, but to lawfully remove from his cast of enablers the DoJ Staff that has a clear requirement to assert the rule of law, but in defiance of their 5 USC 3331 oath and ABA Model Rules of professional conduct, they have defied the Geneva Conventions and supported war crimes and illegal activity. The way forward is to disbar the DoJ Staff and have them replaced with those who are interested in the rule of law, not simply in the rewards of power for having made campaign contributions.

    * * *

    The President will remain in office until 2009. Three weeks after the Senate, which is elected in 2008 and takes their seat in the first week of January 2009, the Congress will have a window to both bring charges and then remove this President.

    What does or does not happen between now and the 2006 election is irrelevant. Rather, there are two more elections between now and 2009 whereby the Senate can change, and shift away from the President.

    Whether this war of distraction on Israel continues for many months or years is irrelevant. Our system of laws can endure, and just as people can both wash their hair, and think about the law; so too can a nation engage in combat operations and still remain civil within the laws of war.

    Our job as Americans is simple: To make it clear to our peers that the rule of law will prevail, and that we can civilly resolve this matter and there is a solution. Between now and January 2009 there will be more information of illegal conduct.

    The way forward is to craft a New Constitution with enforceable mechanisms that ensure that the Congress is compelled with mandatory requirements to conduct investigations. It is one thing to pass laws saying Congress or the Executive should do something; it is quite another for the legal community to accept that We the People may independently draft a New Constitution that compels action that the founders assumed would automatically occur out of self-interest: The clash of ambition.

    Today, with respect to Althouse and Mary, the issue is whether the players will accept that they have sparked something that deserves world attention: That there is a solution to seemingly annoying problems. the way forward is for the players to agree to disagree and hold each other in disgust, as they jointly agree that there are far larger issues which deserve their talents and attention.

    Mary, I thank you for being the catalyst for these thoughts; and Ann Althouse I continue to be admired by your accomplishments. I would hope that you take these words with the intent that they are delivered: That the public might see that the legal community is competent, they merely need to focus on the real issue: What is to be done to preserve, protect and defend, this Constitution.

    I think both of you in your individual capacities can make a difference and make an important contribution going forward. Ann, you will have to accept that given your public figure status people know things that suggest that you are imperfect. Congratulations, you have chosen to understandably react; your job is to go within yourself and choose how you desire to proceed.

    The country needs your leadership; and this Constitution has no voice. Your oath is to the Constitution to ensure that is protected. I would hope that you see the gravity of the situation, and understand that much will change between now and the first weeks of January 2009.

    In the end, We the People shall remain free, and we shall assert the rule of law. Your job -- Ann and Mary -- is to focus your energy on what will do the most good; and by your example inspire others in the legal community and public sector to focus on what needs to be done to move forward and assert the rule of law to protect our founding document.

    Your Constitution needs you; Americans need you; and we expect you to continue to use your minds to ambitiously assert your interests, whether they are personal or professional. Your peers need your enthusiasm which is contagious; and they also need leadership which is something you both have demonstrated.

    I expect you to continue speaking out, challenging others, but always knowing in your core that the rule of law and the ABA standards of professional conduct can work: They merely have to be made to work by those who know the rules, and can leverage the system to achieve the result we desire: The preservation of this Constitution.

    Good luck and I thank you for your visit to this blog and look forward to reading your comments, reactions, and plan to work with the ABA and others in the legal profession to disbar the DoJ Staff attorneys who have assented to these war crimes; there is no statute of limitation on either criminal conduct or the Constitution.

    We shall prevail. They shall lose.

    They wished this.

    * * *

    Supporting Material

    (1) Public Oversight Of Attorneys

    The problems Americans face are not unprecedented, and we can find solutions. Charles I, Watergate, Iran-Contra.

    Public oversight of the ABA, a catalyst for disbarring DoJ, DoD, and White House Staff attorneys. Ref

    Attorneys are not above the law; they have Article 82 Geneva obligations to ensure the laws of war are followed. This DoJ Staff has failed. German lawyers were prosecuted for war crimes for doing the same: Planning, organizing, and failing to stop illegal activity. Ref

    Nuremburg was not the only location for trials. The Germans held war crimes trials for many decades at Ludwigsburg. Over 100,000 were prosecuted. There is no merit to any DoJ Staff attorney argument that the US faces a new threat that would require the DoJ Staff to be given amnesty, or that the DoJ Staff must be used for a "bigger objective." rather, Americans may lawfully prosecute combat operations abroad, and assert the rule of law against alleged war criminals on the DoJ Staff. Ref

    Unprofessional online conduct linked to ABA Staff Ref and to the DOJ Staff attorneys Ref: Raising reasonable doubts about the veracity of Gonzalez statements before Congress, forming the basis for the public to compel and oversee closely the ABA as it work with the Texas State bar to investigate Gonzalez alleged illegal activity and alleged war crimes involvement; and support a decision whether to sanction, disbar, and/or forward information to The Hague or US Attorney to prosecute Gonzalez for alleged war crimes involvement, planning, and counsel.

    (2) Public Oversight Of Executive Branch

    There are state level resources prepared launch legal documents into the floor of the Congress to compel a decision: Whether the Congress is or is not serious in investigating the President for illegal activity and violations of the Constitution. Ref

    There is precedent to impose mandatory investigation requirements on Congress. Ref

    Precedents making it illegal for Specter to do what he proposes to do: Illegally affect ongoing litigation. Ref

    (3) We the People May Create A New Oversight Mechanism

    A New Constitution can be drafted outside Article V. Ref

    There are ongoing discussions to draft a New Constitution and formally present this in a manner consistent with the presentment requirements in Federalist 78; the ABA, DoJ Staff attorneys, and President have been denied a seat at the table. Ref Ref