A concerned mood hung in the room as the Rappaport Center for Law and Public Policy assembled a panel of experts on October 8 to discuss the subject of professional accountability for lawyers in a moment of rising anxiety about the rule of law.
The panel, titled “Sword or Shield? Bar Discipline in a Polarized Era,” was moderated by BC Law Professor Michael Cassidy, who is also the outgoing Chair of the Massachusetts Board of Bar Overseers.
In his opening remarks, Cassidy detailed a number of recent requests to bar overseers for investigations against government lawyers, including those working for the Trump administration. He also mentioned local cases, including ones involving assistant attorney generals who failed to turn over Brady material to defense attorneys amidst the drug lab scandal, and against former US Attorney for the District of Massachusetts Rachael Rollins, who is alleged to have violated ethical rules by, among other things, leaking information about an investigation to influence the district attorney race. Cassidy also pointed to the disbarment in recent years of Rudy Giuliani in Washington, DC, and New York, and John Eastman in California as examples of attorneys who were disciplined by state bars for violating ethical rules.
Given the current news cycle, however, Cassidy mused that current law students in his Professional Responsibility class may justifiably wonder if all they are learning about conflicts of interest and protecting client confidence is like “Nero fiddling while Rome burns.” Cassidy then turned to the panel to ask whether state bar associations are too reluctant to bring disciplinary actions against government lawyers.
Stacey Best ’95, executive director of Lawyers Concerned for Lawyers and a former assistant bar counsel, responded that bar counsel are not “reluctant” so much as they are constrained: bar counsel take their cues from the adjudicators, and if they see time and again that hearing committees or the Board of Bar Overseers are not receptive to certain types of cases, they will not use their resources to bring them.
She further explained that “there is a skill issue, a reporting issue, and a bias issue in terms of adjudication and how cases are decided.” Bar counsel can only proceed if they know about the potential ethical infractions and if they are knowledgeable about whether the conduct constituted a violation of the ethical rules, particularly in areas of law that they themselves haven’t practiced in.
For example, Best noted that bar counsel who have not practiced criminal law may not feel comfortable taking on cases in which government lawyers are alleged to have violated their oaths by failing to disclose exculpatory evidence or making improper arguments in court because those scenarios may involve a more technical or nuanced understanding of what is beyond the pale.
Hal Lieberman, a partner at Emery Celli Brinckerhoff Abady Ward & Maazel LLP, and the former chief counsel of the Departmental Disciplinary Committee for the New York State Supreme Court, added to Best’s comments by emphasizing that there is no “carve out” for federal lawyers. He also explained how histories of cooperation between bar disciplinary authorities and law enforcement on other matters can sometimes lead to a reluctance on the part of the bar authorities to “trample” on that relationship by bringing proceedings against a government lawyer.
Lieberman noted that bar counsels are just sometimes weak or afraid to go after a politically powerful person when warranted, which leads to their inaction. One alternative avenue he highlighted was federal courts’ disciplinary committees, which may also adjudicate complaints and discipline attorneys by taking away their right to practice law in that district again. This disciplinary action may in turn be reported to the state bar, which may decide to impose “reciprocal discipline” and disbar the attorney.
Lauren Stiller Rikleen ’79 opened her comments by outlining the work of Lawyers Defending American Democracy (LDAD), for which she serves as executive director. The organization relies on a team of volunteer lawyers to protect judicial independence and the rule of law and to ensure ethical accountability for lawyers representing the government or government officials.
The most recent prominent example of the latter is a bar investigation request that LDAD has brought against US Attorney General Pam Bondi with the Florida Bar, where she is licensed to practice law. The complaint refers to her “zealous advocacy” memo to DOJ lawyers, in which she asserted that their sole role is to defend presidential priorities and policies. LDAD contends that the directive is in conflict with an attorney’s obligation to follow the rule of law.
A general theme of the panelists’ comments was that there are more and more public instances in which government lawyers are engaging in misrepresentation or otherwise violating their ethical rules, and it was not clear whether state bar overseers have the ability and willingness to address them.
That said, both Stiller Rikleen and Lieberman maintained the importance of using the bar discipline process and holding lawyers accountable to their oaths. Recently, Lieberman wrote and filed requests for investigations on behalf of the Legal Accountability Center against Karl Bove and other government lawyers. Panelists emphasized that—whether the process ultimately results in discipline or not—there is meaning in creating an evidentiary record of the abuses, educating the public about what is happening, and reinforcing the fact that a self-regulating profession is filled with lawyers who actually care about ethics and who make serious attempts to enforce them.
In the closing Q&A session, Lieberman rejected the idea that bar discipline should be federalized to be more effective, insisting that what is most needed instead is a stronger willingness and more robust efforts to enforce existing laws by the state bar associations. “If the DOJ doesn’t want to enforce its own standards, then someone needs to stand up and make it clear that they need to enforce their own ethical standards, which complement and mirror in many ways state bar association standards,” he said. “We’re just trying to say a lawyer cannot stand up in court and willingly lie to a court.”
Photograph by Reba Saldanha