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Stimson Apologizes:

In a letter to the editor, published in today's Washington Post, Deputy Assistant Secretary of Defense for Detainee Affairs Cully Stimon aplogizes for his remarks last week:

During a radio interview last week, I brought up the topic of pro bono work and habeas corpus representation of detainees in Guantanamo Bay, Cuba. Regrettably, my comments left the impression that I question the integrity of those engaged in the zealous defense of detainees in Guantanamo. I do not.

I believe firmly that a foundational principle of our legal system is that the system works best when both sides are represented by competent legal counsel. I support pro bono work, as I said in the interview. I was a criminal defense attorney in two of my three tours in the Navy Judge Advocate General's Corps. I zealously represented unpopular clients -- people charged with crimes that did not make them, or their attorneys, popular in the military. I believe that our justice system requires vigorous representation.

I apologize for what I said and to those lawyers and law firms who are representing clients at Guantanamo. I hope that my record of public service makes clear that those comments do not reflect my core beliefs.

For news coverage of the apology, see these stories from Reuters and the Post.

Anderson (mail) (www):
Why does Stimson hate America?...
1.17.2007 8:34am
sk (mail):
Thank God Stimson is back on the reservation. As we all know, no decision, no process, no activity can be just if lawyers and the judiciary aren't involved...

Sk
1.17.2007 8:41am
sk (mail):
"NORTH COUNTY -- The going is tough for two organizations as they try to raise money for the legal defense of a group of Camp Pendleton Marines charged with murder and other crimes in Haditha, Iraq, spokesmen for both groups said last week.

Although nearly three weeks have passed since the charges were filed, the defense fund has received just $1,200 in donations. Meanwhile, another defense fund group that is also trying to raise legal funds for the Haditha Marines has not received a dime in donations for the men, a spokesman for that group said. While any service member who is accused of a crime is entitled to a court-appointed defense attorney who is also a member of the military, in major cases it is common for defendants' families to also hire civilian attorneys."

Perhaps this could be forwarded to those noble weathly corporate attorneys offering pro bono legal coverage...

Sk
1.17.2007 8:47am
Ryan Frank (mail):
Sk -

Exactly what I was thinking about. Lawyers are of course free to choose thier pro bono work, but I don't think its out of line to point out that many of them seem a lot more eager to defend those in Guantanamo then American troops.
1.17.2007 8:57am
DJR:
Those in Guantanimo need more defending.
1.17.2007 9:12am
j..:
There is a nationwide pro bono Assistance to Military Personnel Program that most large firms have access to, and many participate in. Generally this means assisting military personnel in financial planning, credit issues, divorce/custody, and other civil matters. I don't know if this also includes criminal defense, but I believe criminal defense lawyers (generally those with actual defense practice, not the white-collar practice group 4th year associates) I know have taken on military criminal defense pro bono cases regardless of whether or not it is part of this program.
1.17.2007 9:16am
Peter B. Nordberg (mail) (www):
Stimson is to be commended for making explicit apology, and for recognizing that his position was utterly indefensible. Dare it be hoped that some of those who rushed to defend that position will now rethink?

I'm a little puzzled about the remarks regarding the Haditha Marines. It's not clear how the disappointing progress of efforts to raise money for their defense fund implies anything at all about the willingness vel non of private counsel to represent them pro bono. I would applaud any counsel who did, but the Marines' situation meanwhile does not seem similar. They will have appointed counsel.
1.17.2007 9:20am
A.S.:
What a shame. I guess when the political heat becomes too much, you sometimes have to take one for the team, no matter how right you were.
1.17.2007 9:52am
Bob from Ohio (mail):
"Dare it be hoped that some of those who rushed to defend that position will now rethink?"

Why? Stimson stepped on toes and is eating the crow required of his thought crime.
1.17.2007 10:06am
Thorley Winston (mail) (www):
I would applaud any counsel who did, but the Marines' situation meanwhile does not seem similar. They will have appointed counsel.


As Stimson pointed out in his remarks, so do the detainees at Gitmo. In which case Sk and Bob Frank were correct at pointing out how so many lucrative American law firms seem more willing to donate free legal services to defend people who are accused of being affiliated with our enemies than they are the men and women who defend us from them.
1.17.2007 10:33am
Prigos:

NORTH COUNTY -- The going is tough for two organizations as they try to raise money for the legal defense of a group of Camp Pendleton Marines charged with murder and other crimes in Haditha, Iraq, spokesmen for both groups said last week.

Given the many references to inapt analogies that have been floating through the threads in the last few days, I'll point this one out. Enemy combatants in a legal purgatory facing a system designed for maximum efficacy with regards to keeping them in that legal purgatory are just a wee bit different than US soldiers who will be provided with their full rights in a clearly defined legal matter.

That said, the lack of donations seems more a "put your money where your mouth is" situation for those noting it in these circumstances than a mark against the legal profession for not having immediately jumped foward to defend them. Particularly when you look at the time frame for the detainee issue. It's been around for a while now.
1.17.2007 10:37am
David Sucher (mail) (www):
"I apologize for what I said" -- no wimpy passive voice -- is a good start. But why is it that people find it so dificult to say "I was wrong" and/or "I have changed my opinion" etc etc? It is not just Stimson; it is a universal trait of humans. You see it clearly and shamefully with Bush and his "Decisions have made things unstable."
1.17.2007 10:52am
Loki13 (mail):
I have always been a big fan of this website, but the recent discussions on this topic have made me truly question thee conflicting purposes of what appear to be two separate groups of posters-

There seem to be one group of commenters that are truly interested in points of law, and discussing the different approaches you can take to political, legal, and economic issues.

Another group of posters simply want to issue their tired right-wing talking points (note- I am not saying that there are not tired left-wing talking points, but, well, this blog doesn't really attract that type).

What Mr. Stimson did was, inarguably, wrong because he was a public official. There are many heinous crimes commited every day- for example, rape. No one would argue that, were a DA to slader opposing counsel and inveigh against their moral character, we would question the motives of the DA. Our system of law does not work when government power is brought to bear against the ability of unpopular defendants to secure counsel.

That Mr. Stimson was a member of the bar, and familiar with the model rules (those that were adopted in the jurisdiction in which he is licensed) makes his actions worse. It is good to see that he is now cognizant of his responsibilities and that he apologized for his earlier comments.

This matter is neither pro- nor anti- Bush. This is not about coddling terrorists. This is about government intimidation, and about a lawyer's ethical responsibility, and I believe it is instructive that even those lawyers considered to the right of center quickly condemned Mr. Stimson's remarks.

Part of learning to contribute to a discussion, of participating or shaping a discourse, is forgetting your talking points. You are known by your 'reservations' and your 'thought crimes'. Remember that when all you have is a hammer, every problem starts to look like a nail. The reason Mr. Stimson was wrong was not because he was a Republican, not because he was a member of the administration, and not because he was associated with the President.

He was wrong because he was wrong. No amount of reactioanry buzzwords will make him right.

As to the question of scarcity of resources (choice of pro bono work)- that is a more interesting one. Why defend the detainees at Guantanamo? Well, because they need to be defended. Why use the limited number of pro bono hours to defend them instead of others? That is a choice. That they need counsel cannot be disputed, that a government official criticizes their counsel is deplorable (and calls for a boycott is despicable) but for a private commenter to wonder why the employees of these firms made that choice is acceptable. I, for one, feel the choice is a good one as I believe that many of the detainees are unfortunate victims who were turned over for cash rewards and had nothing to do with the fighting, and I also believe that government power needs to be checked. But your mileage may vary.
1.17.2007 10:56am
Ty_Webb:
Prigos:


Enemy combatants in a legal purgatory facing a system designed for maximum efficacy with regards to keeping them in that legal purgatory are just a wee bit different than US soldiers who will be provided with their full rights in a clearly defined legal matter.


1) I agree--excuse my ignorance on the legal ramifications of the Haditha affair, but I have not heard any specific legal claims for the defendants in that case that rise to the level of the (albeit potential) claims for (some of) the detainees.

2) Having said that, were I to be informed (even by someone on this site) as to the nature of any reasonable substantive or procedural defense for the Haditha Marines, I would have no problem doing whatever I could to help them. Despite the cynical intimation of some on this site that all pro bono work is politically motivated, I honestly believe that everyone (no matter the political stripe of their activities) is entitled to a zealous defense.

More importantly, I think most lawyers love an exciting case, and most litigators love the chance to win one. That fact has been roundly ignored in this discussion: lawyers love the zero-sum game that is a verdict or reversal, as much as modern practice tends to avoid that messy, unpredictable endgame. It's thrilling. If all we wanted was money, power, and political influence, there are plenty of other professions for us to get into. Idealistically, I think those three desires are complemented by a commitment to the rule of law. Practically, I think everything is underpinned by an extraordinarily competitive nature, a nature that has been intrigued by the Guantanamo case and likely will be equally intrigued by the Haditha affair.
1.17.2007 10:56am
Colin (mail):
You don't think that there's a significant difference between (A) U.S. military personnel being represented by U.S. military personnel, and (B) detainees accused of being Al Qaeda and Taliban operatives being represented by U.S. military personnel? I have enormous respect for the JAG corps, but it's strange to equivocate these two cases. Nor, of course, have I seen anyone indicate that the Marines in question aren't getting offers of pro bono representation. The fact that they aren't raising much money doesn't really bear on whether anyone has offered to represent them from free, does it?
1.17.2007 11:06am
JosephSlater (mail):
Loki13:

Nice post.

Thorley Winston:

I'll ask you explicitly what I've been asking folks on your side in several of these Stimson threads without getting any response. Do you really believe that the high-powered capitalists that run corporate law firms (and generally work for and with high-powered capitalists that run businesses) are some sort of left wing/terrorist symp class? If so, why?
1.17.2007 11:57am
Adeez (mail):
Loki13:

Amen Brother! (Or sister!)
1.17.2007 12:19pm
jallgor (mail):
JosephSlater wrote:
"Do you really believe that the high-powered capitalists that run corporate law firms (and generally work for and with high-powered capitalists that run businesses) are some sort of left wing/terrorist symp class? If so, why?"

I answered this question in a previous thread but I'll reiterate here. I wouldn't say the partners at these law firms are "a left wing/terrorist symp class." I know and have worked with probably 200 or more partners at some of the firms involved in this matter and other firms that would be considered top corporate firms. Of those partners I probably know 60 or 70 well enough to comment on their politics. Of those about 90% lean left in their politicial views and a good 15% are way left. Among the "way left" I am thinking of a partner that put a "No More Bushit" bumper sticker on the door to his office. I can also think of at least 3 or 4 partners that were very involved in the 60's protest movement and still consider themselves to be activists and radically left. It may not make much sense to you that these "high powered capitalists" would lean to the left but I think most people who work at law firms would confirm my anectdotal evidence.
1.17.2007 12:23pm
Aultimer:
jallgor - you should really try working with some partners outside the entertainment and trademark practices. You'll find much more right-leaning among the corporate and white-collar litigation groups of large national firms, and also in offices off the left coast.
1.17.2007 12:40pm
Kovarsky (mail):
jallgor,

i suppose that it doesn't mean much to you that your evidence that partners tend liberal does not suggest they're terrorist sympathizers. see, e.g., the oklahoma city bombing and the militias that executed it.
1.17.2007 12:41pm
Thorley Winston (mail) (www):
i suppose that it doesn't mean much to you that your evidence that partners tend liberal does not suggest they're terrorist sympathizers. see, e.g., the oklahoma city bombing and the militias that executed it.


You're right in that it probably doesn't mean much to jallgor since the suggestion that they were terrorist sympathizers was a strawman thrown out by JosephSlater rather than a position asserted by anyone.
1.17.2007 12:48pm
JosephSlater (mail):
Thorley:

No, it wasn't a strawman. Several people in the various threads on Stimson have suggested that or said it explicitly.

Jailgor:

Thanks for the response, sorry that I missed it in the other thread. Your anecdotal experience is different than mine -- and apparently Aultimer's. It may also be that we have different definitions of what it means to be on "the left" or even liberal. Again, I'm not denying that some partners in big firms might be liberals. But one would have to be pretty far to the right to conclude that big capitalists in big law firms generally on are the political left.
1.17.2007 12:59pm
Thorley Winston (mail) (www):
No, it wasn't a strawman. Several people in the various threads on Stimson have suggested that or said it explicitly.


Your question was addressed to me and I never stated it. Moreover I doubt anyone else has ever stated it on this forum unless you can provide links showing otherwise.
1.17.2007 1:06pm
JosephSlater (mail):
Thorley:

I provided links to you after you rather rudely demanded I do so regarding in the Newt Gingrich/Free Speech issue. Not so much as a thank you or apology from you followed. From now on, you can do your own web-searching.
1.17.2007 1:19pm
Thorley Winston (mail) (www):
I provided links to you after you rather rudely demanded I do so regarding in the Newt Gingrich/Free Speech issue. Not so much as a thank you or apology from you followed.


That's because your links failed to support your assertion as you failed to provide a single example of a specific limitation on free speech that Newt Gingrich had advocated in his speech. Given your history on this forum of throwing out these sorts of unsupported assertions, I figured it was safe to assume that this was just another in a long line of the same. Thank you for proving me correct.
1.17.2007 1:27pm
Bob from Ohio (mail):
"There seem to be one group of commenters that are truly interested in points of law, and discussing the different approaches you can take to political, legal, and economic issues.

Another group of posters simply want to issue their tired right-wing talking points (note- I am not saying that there are not tired left-wing talking points, but, well, this blog doesn't really attract that type). "

Yes Loki, those who agree with you are "interested in points of law" while those you disagree with are just interested in "their tired right-wing talking points". Very open minded of you. (Or is that just a talking point?)

"He was wrong because he was wrong." Some people dispute that even though it is "inarguably" true that Stimson was wrong. Conclusory statements like that do not really shape a discussion, do they?

No one ever successfully identified a rule that Stimson clearly violated. Yet, he was "inarguably" unethical.
1.17.2007 1:38pm
JosephSlater (mail):
Thorley:

What I quoted and linked about Gingrich clearly supported what I said he said. Heck, it was big news all over the net, not some little imaginary hobby-horse of mine. So either you have fairly serious reading comprehension problems or you're one of those guys that can't admit when he's wrong. Either way, it's not productive to continue this.

Bob from Ohio:

Do you believe Stimson now when he says he was wrong?
1.17.2007 1:46pm
Loki13 (mail):
Bob from Ohio,

I know you're not interested in the facts, but the jurisdiction that Mr. Stimson is licensed in (for example, Cali does their own thing) would change the outcome of the ethical rule greatly. If you're looking at stright model rules which are not in force anywhere, then:

8.4- the granddaddy catch call.
3.8f (heightened duties of prosecutors- is Mr. Stimson in the role of prosecutor, is it imputed by his position?)
and 1.2b (the aspirational rule).

But none of this was the reason for my post. If Brad DeLong and Greg Mankiw are having a debate about economics, I tend to let them hash out the intricacies of the econometric analysis. I may disagree with some of their normative conclusions (on either side), but I won't jump into the debate spouting nonsense.

Once again, Mr. Stimson's remarks were universally deplored by members of the legal profession: left-wing and right-wing. He chose to retract his statements, and rightfully so, because they go against everything that our system of adversarial law stands for. The mark of a true fanatic is that when they've lost sight of their goal, they redouble their effort. It amazes me that on a relatively uncomplicated issue like this that the administration itself disavowed, we still get the same bizarre rants.

And finally, no, I don't think that people that disagree with me have 'tired right-wing rants' and other people have interesting points of law. On other subjects (2nd Amendment interpretation, paternalistic liberatarianism) I think I have seen very astute points raised that have caused me to challenge my own a priori assumptions. But when I see the "...But Clinton" posts (and the "....But W" posts) I have to wonder... why? Most of the time, it doesn't bug me, but on this topic... IT'S NOT ABOUT BUSH. It's not a Republican/Democrat thing. It's a legal ethics issue.
1.17.2007 2:20pm
jallgor (mail):
Aultimer: I work in NYC and when I was at law firms I was practicing litigation with a bit of a focus on defending securities class actions. I have never practiced in CA, or done IP or entertainment work. I am now in-house counsel at an investment bank. I am confident that every lawyer in my department from the GC down would classify themselves as a democrat and a liberal. Of all the lawyers I have ever met in my entire life I can only think of 2 who were outspokenly conservative (3 if you count professor Volokh but I don't want to get into that whole "is he conservative or libertarian or is there a difference" thing).

Kovarsky: I specifically noted that I would not refer to them as "terrorist symps."

JosephSlater: I admit that my evidence is anecdotal but my identification of these people as left is primarily based on how they have identified themsleves to me. I think the one thing you might be missing is that perhaps these people either a) don't see themsleves as "big capitalists," or b) don't see anything incongrous about being a "big capitalist" and being a liberal, or c) they feel like "sell outs" so they become very politically active on the left to assuage their guilt. These are just theories. I am not saying I believe in any of them. I am just positing some of the possible ways that these "big capitalists" that you speak of could idenify themselves as liberal.
1.17.2007 2:24pm
JosephSlater (mail):
Jailgor:

I appreciate the temperate and intelligent response. Of course I can't debate about the folks that you've met. I can only say that if you've only met two lawyers in your life that are truly conservative, either you may not be dealing with a truly representative sample or you may be defining left or liberal differently than some folks are. Of course you say these folks are self-defining, so. . . ?

Big firm partners ARE, objectively, big capitalists, or at least successful big business folks. It's not necessarily inconsistent to be a big capitalist and have some socially liberal views (abortion, gay marriage maybe). But it's hard to really be a "leftist" if you're at the head of a big business, especially on economic issues.

The basic question remains, to those -- not you -- who see some dark, politically-motivated, terrorist-symp commie outlook among the white-shoe corporate lawyer set about how exactly all that works.
1.17.2007 2:45pm
Centrist:
JosephSlater -
FWIW Thorley Winston's MO, in this and other threads, when confronted by facts that don't fit with his theory of the way the world works is to make a snug "That's nice" type of comment and suggest that the poster "do more work". I can't say where his arrogance comes from - perhaps he is a fifth-year associate at a law firm and is now drunk with his power to command first and second-year associates to do his lexis and westlaw searches - but it is hardly worth responding to his requests.
1.17.2007 2:49pm
JosephSlater (mail):
Centrist:

Thanks. I agree and will try to heed your sensible advice. At risk of violating the very laudable Comment Policy, I'll just add that even the power-drunk senior associates I've known don't publically make claims so easily disproven by minimal research.
1.17.2007 3:08pm
Bob from Ohio (mail):
Joseph Slater: "Do you believe Stimson now when he says he was wrong?" I don't believe he was wrong in the first place, if he honestly feels he made a mistake, that is up for him to decide. I still think his comments were acceptably within the bounds of appropriate comment, both as a public official and as a lawyer. You and others differ.

Loki: I don't know exactly what I said to make you so angry. You still do not identify a rule that he clearly violated.

He is not a prosecutor. The JAG lawyers in Gitmo report to their chain of command through to the Judge Advocate General. I am unclear who the Judge Advocate General reports to. It is not Stimson though. The Deputy Defense Secretary reviews the decisions of the hearings as I understand it.

Do you honestly think he violated Rule 8.4 or similar rules? It is very broad but does not reach every statement that a lawyer makes. Stimson, even as a lawyer and public official, retains certain free speach rights.

"fanatic", "spouting nonsense", "bizarre rants", "not interested in the facts" Thank you for your reasoned discourse.

And as for your "am not saying that there are not tired left-wing talking points, but, well, this blog doesn't really attract that type". Look at the first comment here. Still think that?
1.17.2007 3:18pm
Aultimer:
jallgor: We must have different ideas about what makes a lefty, or just move in oddly different circles. I've been in-house at F100 and techie SP500 firms (Philly and DC) with many senior lawyers who were outspokenly Republican and conservative (although not terribly right on social issues). Several of my outside counsel are public supporters of Republican politics and some served in Republican state and federal administrations.
1.17.2007 3:33pm
Loki13 (mail):
Last post...

Bob, did you *read* the model rules and my disclaimer? First, without knowing where Mr. Stimson passed the bar, I cannot honestly tell you what rule he may have broken. Many states have adopted variants of the ABA Model Rules that we're discussing, some still go back to the pre-83 canon, and others (Cali, et al) do their own thing. But the thing is that, without knowing the very specific rule, what he did was of such a suspect nature that any lawyer who saw those statements immediately went, "Umm... you can't do that. You just can't." Assuming some facsimile of ABA model rules, then you have 8.4d- engage in conduct prejudicial to the administration of justice.....

Let's see.... having a high ranking official that is a party to a proceeding before a tribunal as defined by 1.0 prejudice the ability of the opposing side to get counsel, and hint that their current counsel is funded by terrorist when he knows that is not the case? Yeah, that's 8.4d.

Then there's 3.6a+d (d imputes a to Mr. Stimson) regarding pre-trial publicity.

As I wrote above, there's 3.8f (referential to 3.6) which I believe Mr. Stimson falls under. I believe, under the model rules, that this would be imputed to him, but I do not know enough of the workings of the Department, or his position, to answer the question positively. If he has any direction over the prosecutorial staff, then it is a 3.8f violation, even if he does not prosecute the cases individually.

Finally, there's 1.2b. I refer to it as the 'aspirational' rule. Again:
"A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities." Can you face disciplinary action for what Stimson said in violation of an aspiration rule such as this? Dunno.... this is always used in proceedings where a lawyer is attempting to get out of a case they don't want to do, either because of court appointment or because the've been assigned to prosecute a case they don't want to prosecute (Mendoza Toro v. Gill 110 F. Supp 2d 28).

Back to the big picture, Bob:
1. Was Mr. Stimson 'wrong' from a, wow, a lawyer shouldn't do that ethical perspective?
Yes.

2. Did he violate an actual ethical rule?
Almost assuredly, depending on the state that he passed the bar. Every single state has some version of a catchall 8.4 that he's in violation of, and depending on the state, and your reading of the rules/commentaries (don't even go there!) he may be in violation of some other rules/canons.

3. Should he be disbarred?
No. Since he disavowed the comments, I would not be in favor of any proceedings being brought against him. Even were proceedings to be brought, the worst penalty this would bring would be a short censure.

4. So why do people care?
Because right- or left-wing lawyer, this is about our ethics. Our system is adversarial- it requires two sides. Given all the other advantages the prosecution would have in these cases, to effectively attempt to remove effective counsel from the detainees through blackmail and coercion is something our government should not do. Thankfully, our administration quickly did the right thing and disavowed Mr. Stimson's comments, showing that we are, in fact, a nation of laws.
1.17.2007 4:05pm
Shad:
Whew!

Thank the goddess that this man has finally been silenced and chastised for daring to speak a non-approved viewpoint in public. Imagine, suggesting that people might form opinions about lawyers and groups of lawyers on the basis of who they choose to take as clients — how preposterous!

Hopefully we can now get back to the regularly scheduled program of complaining that all of the lawyers in Bush's DOJ and Bush's military — as well as anyone who agrees with anything Bush has said, thought, or done regarding the GWOT — are conspiring to shred the constitution and take away all of our rights and therefore they should be ridiculed, shunned, ostracized, impeached, disbarred, and jailed.
1.17.2007 4:40pm
Hattio (mail):
I'm curious what other practicioners generally think about the political leanings of the partners at their firms. I have limited experience with big firms (read as none working for, though some litigating against). I have to say that my general impression is that PI lawyers seem to be liberal (duh) though sometimes it seems mostly driven by tort reform. Basically every other class of attorneys tends conservative/Republican with the liberals being more outspoken about politics (because of being the minority I'm guessing). What's interesting is among the PI lawyers, the conservative/Republicans seem more outspoken. But then again, maybe the minority voices make more of an impression because the comments are more rarely heard.
1.17.2007 5:03pm
Colin (mail):
Shad,

You might find it educational to compare your content-free sarcasm to Loki13's thoughtful, reasoned, and articulate discussion of these issues.
1.17.2007 5:17pm
Ryan Waxx (mail):
Or the preceding educated "There's people interested in truth, and then there's the right wing" comments.

Remember, it can't be possibly be bigoted if it comes from the left.
1.17.2007 6:33pm
Colin (mail):
Or the preceding educated "There's people interested in truth, and then there's the right wing" comments.

To be fair, Loki13 specifically disclaimed that interpretation of his comments. Were you trying to be fair? I don't want to misinterpret you.
1.17.2007 6:54pm
Barry P. (mail):
Waxx: are you actually blind or just willfully so? The comment you refer to said that there exists both left wing and right wing dogma, but that the left wing dogma is basically absent from this blog. Go take a look at Kos and DU, then go to Powerline or FreeRepublic. You'll see plenty of Freepers here, but basically no Kossers.
1.17.2007 6:58pm
Jay C (mail):
IIJM, or does Mr. Stimson's "apology" come across as
1.17.2007 7:11pm
Jay C (mail):
IIJM, or does Mr. Stimson's "apology", on closer examination, turn out to be pretty much a non-apology after all?

True-to-form for Bush Administration officials caught out in some ethical gaffe or other, I noticed that Mr. Stimson's apology doesn't address, at all, the substance of the criticism leveled at him over his detainee-representation remarks.

While he is careful to proclaim no animus against individual attorneys, firms, or the legal profession in general re their representation of Guantanamo detainees, any recantation of his most controversial notion - that corporate clients of law firms doing said pro bono work should pressure them to drop those cases - is conspicuously absent.
1.17.2007 7:18pm
Loki13 (mail):
Jay C,

While I am as hard on Mr. Stimson as anyone for his ethical lapse, I feel that his apology is sufficient. My understanding (please correct if I am wrong) were that his original comments were made on a radio show. These were off the cuff, assumedly made of his own volition, and not done in a considered or deliberate manner (as a written op-ed piece would be) or vetted by administration sources. I'm guessing (hoping?) that Mr. Stimson was simply carried away, and in his prosecutorial zeal to get the 'bad guy' (as he sees it) made a huge mistake.

He apologized to the lawyers and law firms he unfairly attacked, and referenced his own defense work. While I still wonder how he could say something that would be so antithetical to most lawyers' core ethical constraints, I feel his apology is as heartfelt as we're likely to get in today's political era of carefully vetted statements, and a good deal more than I thought was likely. As apologias go, it was a good deal more contrite than Checkers, after all.
1.17.2007 7:32pm
Eli Rabett (www):
Do you folk read English. Stimson said:

Regrettably, my comments left the impression that I question the integrity of those engaged in the zealous defense of detainees in Guantanamo. I do not.


They didn't leave any damn impression, he flat out said that he questioned the integrity of those engaged in the defense of the Guantanamo detainees.

Call me when he really apologizes, or better resigns.
1.17.2007 10:54pm
hugh:
Hey folks, for those of you who feel that Stimson should be punished...keep in mind that he will probably never be able to get a position as a law professor.

Keep in mind, if he had not been in the military and if his comments had been aimed at the prosecutors, he would have suffered no impairment of his potential academic career. Behavior isn't unethical if it is done on behalf of the liberal cause.
1.18.2007 6:46am
Amy (mail):
The apology was hilarious. He said the exact opposite of what he had said before and made no explanation. I don't believe his apology whatsoever. I think its funny how so many commenters think the comment was perfectly fine. Obviously they a) don't understand the theory behind our legal system (two sides vigorously representing a client) or b) don't think the that legal system applies to the Gitmo detainees. Probably the latter, and we've all had that argument before. (nobly resisting the urge to get into it again . . . its soooo hard) :)
1.18.2007 2:27pm
Aaron:
Not only is law prof out, but I think he has failrly well burned his bridges with BigLaw as well... I guess there's always Heritage...
1.18.2007 3:43pm
SmokeVanThorn (mail):
Here's what the rules cited by Loki say in pertinent part:

"Rule 3.6 Trial Publicity
(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a)."

How does anything Stimson said prejudice a matter in which he participated in the investigation and litigation?

"Rule 3.8 Special Responsibilities Of A Prosecutor
The prosecutor in a criminal case shall:


(f) 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 investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule."

Again - How does this apply to Stimson specifically?

"You just can't do that" doesn't suffice.
1.18.2007 5:11pm
SmokeVanThorn (mail):
Do you have a response, Loki? Or are generalizatiosn all you had to offer?
1.19.2007 10:16am
SmokeVanThorn (mail):
Loki: "While I still wonder how he could say something that would be so antithetical to most lawyers' core ethical constraints. . .."

Me: "Here are the provisions you cite. In what specific ways did Stimson's conduct violate what they actually prohibit, as opposed to your generalizations about what you claim they prohibit?"

Loki:
1.20.2007 9:28am
Loki13 (mail):
Smoke,

I apologize for not posting, but I assumed this thread was long dead. To respond, quickly:

Cherrypicking does not behoove you. If you look to my post, I specifically stated that the primary violation was an 8.4 violation- this would be the basis for any violation. I also cited the possiblites for violaitons for other rules, and gave some examples of other possible rule violations. In reference to the rule violations that you question, I wrote, "...but I do not know enough of the workings of the Department, or his position, to answer the question positively. If he has any direction over the prosecutorial staff, then it is a 3.8f violation, even if he does not prosecute the cases individually."

While I am impressed that you are able to use a computer to look up the model rules, you should note that the ABA site does not include the commentary, nor does it include examples of the rules being used in case law in any jurisdiction in which versions of them have been employed. For 3.8 (for example), see commentary (specifically 1- prosecutor as minister of justice, &5 avoiding commentary that has no legitimate law enforcement purpose &6 "requires a prosecutor to exercise a reasonable care to prevent persons assisting with the prosecutor from making improper exrajudicial statements" which could impute liability to the actual prosecutors trying the cases for Mr. Stimson's comments).

Then there is 1.2, which you overlook. Comment 5- "Legal representation should not be denied to people... whose cause is controversial or the subject of popular disapproval."

Or 8.4 comment 5- lawyers holding public office assume legal repsonsibilities going beyond those of other citizens. What if (for example), Mr. Stimson was licensed to practice in Florida? Then it's expanded to "engage in any conduct...that is prejudicial to the administration of justice.... [by] knowingly.... or through callous indifference... disparage.... lawyers on any basis on including... employment." Sorry for the ellipsis, but the Fla. version is LONG.

I would cite case law, but I have neither the time nor the inclination. To sum up my original point- Mr. Stimson almost DEFINITELY violated at least one code or canon (depending on where he is licensed- some version of 8.4) and quite possibly violated more (depending on what, exactly, he does in his job). I also stated that I feel that if proceedings were to be brought against him (which I am, at most, ambivalent towards), they should result in a short censure (having his name published in the Bar Report).

If you have actual knowlege, or cases, that suggest otherwise, I would like to hear them.
1.20.2007 1:41pm
Loki13 (mail):
Smoke,

I apologize for not posting, but I assumed this thread was long dead. To respond, quickly:

Cherrypicking does not behoove you. If you look to my post, I specifically stated that the primary violation was an 8.4 violation- this would be the basis for any violation. I also cited the possiblites for violaitons for other rules, and gave some examples of other possible rule violations. In reference to the rule violations that you question, I wrote, "...but I do not know enough of the workings of the Department, or his position, to answer the question positively. If he has any direction over the prosecutorial staff, then it is a 3.8f violation, even if he does not prosecute the cases individually."

While I am impressed that you are able to use a computer to look up the model rules, you should note that the ABA site does not include the commentary, nor does it include examples of the rules being used in case law in any jurisdiction in which versions of them have been employed. For 3.8 (for example), see commentary (specifically 1- prosecutor as minister of justice, &5 avoiding commentary that has no legitimate law enforcement purpose &6 "requires a prosecutor to exercise a reasonable care to prevent persons assisting with the prosecutor from making improper exrajudicial statements" which could impute liability to the actual prosecutors trying the cases for Mr. Stimson's comments).

Then there is 1.2, which you overlook. Comment 5- "Legal representation should not be denied to people... whose cause is controversial or the subject of popular disapproval."

Or 8.4 comment 5- lawyers holding public office assume legal repsonsibilities going beyond those of other citizens. What if (for example), Mr. Stimson was licensed to practice in Florida? Then it's expanded to "engage in any conduct...that is prejudicial to the administration of justice.... [by] knowingly.... or through callous indifference... disparage.... lawyers on any basis on including... employment." Sorry for the ellipsis, but the Fla. version is LONG.

I would cite case law, but I have neither the time nor the inclination. To sum up my original point- Mr. Stimson almost DEFINITELY violated at least one code or canon (depending on where he is licensed- some version of 8.4) and quite possibly violated more (depending on what, exactly, he does in his job). I also stated that I feel that if proceedings were to be brought against him (which I am, at most, ambivalent towards), they should result in a short censure (having his name published in the Bar Report).

If you have actual knowlege, or cases, that suggest otherwise, I would like to hear them.
1.20.2007 1:41pm
Loki13 (mail):
Quick addendum-

A quick explanation of my explanation. There was a little anger there- why? When people post about something they aren't familiar with, they aren't sure what the interpretive tools are. As an example, if you just look at the 1st Amednment- "Congress shall make no law... abridging the freedom of speech." That's pretty clear, right? But... we all know (for example) you can't yell 'Fire' in a theater (unless there is a fire). And there's rules for obscenity. And, well, perjury in federal trials. So there's the plain language of the law, and then there's how it's been interpreted. Even the most hard-core originalist will not argue that Congress can never, ever make any law about what you can say (once again, perjury).

So, for this issue, you have to keep the following in mind:
1. The model rules are not in force anywhere.
2. Most states have adopted the majority of them, in forms similar to them. so they serve as a useful method of analysis.
3. What Mr. Stimson did in unethical, in terms of what is traditionally considered ethical in the western adversarial legal system (and, I believe, in the inquisitorial system as well).
4. When others demand to know 'WHAT EXACT RULE HE BROKE' they are missing the point- this analysis requires more information than we have; at the very least, we need to know where Mr. Stimson is licensed. At the minimum, though, it is obvious to most lawyers that it is VERY LIKELY Mr. Stimson broke an ethical code/canon in his juridiction. I have provided you one rule (by the model rules) Mr. Stimson definitely broke, and three others that he may have broken, depending on his duties. And that's just a quick pass.
1.20.2007 2:09pm
SmokeVanThorn (mail):
You have done nothing more than repeat your generalizations, accompanied by the weasel words that requiring an identification of the "exact rule" he broke and demonstrating that the conduct violates that rule "misses the point."

And the online version of the Model Rules may not have the commentary, but the versions in the books in my office and firm library do.
1.20.2007 11:00pm
Loki13 (mail):
Smoke,

*sigh*

exact rule violation, again- 8.4
possible rule violations, again- 3.6, 3.8, 1.2

I have provided you with my analysis for all of them, both pro and con. You have chosen to ignore 8.4 (the exact rule violation) and 1.2. You have offered no new analysis to 3.6 and 3.8, and your only counterfactual analysis is that 3.6 &3.8 'just don't apply' (they may or may not*) Please use your books, Lexis, Westlaw, or any other resources available within your firm to provide a citation to any relevant code, canon, or case that supports your contention that Mr. Stimson was within ethical bounds. I look forward to your argument that Mr. Stimson did not violate 1.2 or, more importantly, 8.4.

*3.6 and, more importantly, 3.8 are extremely interesting. First, there's the question of what exactly Mr. Stimson does, and whether any imputation can be ascribed to him per (f). Then there's the matter of 'criminal' trial. These are clearly 'tribunals' per 1.0, but will the proceedings be 'criminal' in the full sense of 3.8? I think so.
1.21.2007 9:50am
Loki13 (mail):
BTW,

To get your juices flowing, why not start with 501 US 1030 (Gentile v. State Bar of Nevada). This case is the reason why I was referencing the 1st Amendment, above. It's the Supreme Court's take on Rule 177 in Nevada (analogue of 3.6). For an analysis of whether 8.4d requires intent, you might want to research (*ahem*) IWilliam Jefferson Clinton's settlement with the Arkansas bar re 8.4d (yes) and 8.4c (no), and consider which violation requires intent. There's a few starting points for you. I would give you a few more, but you have, like, books... and stuff.
1.21.2007 10:11am
Loki13 (mail):
Last post, then it's time to prepare for some football (Geaux Saints!)-

I'm interested in this case from an ethics, not a political standpoint. If I were you, Smoke, and I had these fabulous resources, I would do the following:

1. Look at 3.8 &3.6 from the context of his job position, referencing the above Supreme Court decision (for 1st amendment purposes) and previous Fed. Court decisions on imputation for government workers (this is NOT a 1.11 case, as it is not a conflict of interest case, but you may find referring to those rule helpful to determine possible scope of imputation). That would be a way to attack a 3.8 &3.6 argument.

2. 1.2 is traditionally an aspirational rule. Check out some law review articles and news postings re: the Credit Suisse matter (that's when BigLaw was representing Credit Suisse in holocaust claims). Note that opposing counsel was never critical. It has been an open debate as to whether or not this provision of 1.2 can be used in an enforcement action- cite a source as to why you believe it could not be.

3. The big daddy, 8.4. Note that I gave you the Clinton case so you find there is no volitional requirement (there is no requirement that Mr. Stimson meant to prejudice the judicial proceedings). This should be a slamdunk. All of the decisional law I have found indicates it would be (although there are some jurisdictional variations). Can you find any decisional case law to support your contention that it would not be successful?

So- 1, 2, 3. I'll check in again after the games.
1.21.2007 10:42am
SmokeVanThorn (mail):
So far, you've admitted that you don't know the facts and don't know the version of the rule that would apply. You have yet to tie specific conduct to a specific provision. Proving that a rule might apply is only half the point; you must demonstrate a violation of the ruleor rules based on the facts. I'm not saying you can't - just that you haven't, preferring to rely on the alleged opinion of "most lawyers."

And you have the burden of proof.
1.21.2007 6:50pm
SmokeVanThorn (mail):
By the way - did you actually read Gentile? You have to do more than skim the headnotes.
1.21.2007 7:22pm
Loki13 (mail):
Well, the Saints lost.

To reiterate-

1. Mr. Stimson violated 8.4. I stated it. I gave the rule. You have not contradicted it. There is ample case law in many jurisdictions to support this. That is why 'many lawyers' say he violated the rules. Because he did.

2. I cited Gentile and gave you various analytic tools for a discussion re: 3.6 and 3.8. These are issues that are debatable. As for headnotes- no, Gentile was covered extensively in a 3L course I took. I thought this might help you begin your research. From Gentile, you can research both the 1st Amendment issues, branch into questions that have been decided about criticisms of judges and courts (Matter of Holtzman, Matter of Reed, In re Golub all regarding judges) and look into defamation issues (Restate Torts 2d Sec. 586). What about the New York TImes Standard of maliciousness?

As for Gentile, note that the ABA's position re: 3.6 (3.8f) is that no trial has to be held for a violation to occur. What are your thoughts on this?

Applying 3.6 and 3.8 are intriguing legal issues. As I stated at the beginning, it is quite possible Mr. Stimson violated them. I can make a strong case using the above cited materials that not only did he violate them, he can face a defamation case. You?

3. 1.2 is still ignored by you. I previously gave one (of many) case cites as to when it is used (to prevent lawyers from refusing to accept court appointments and/or refuse to accept prosecutorial appointments they do not like often in combination with other model rules). I believe it can be used as a stand-alone rule. I have given reasons for that. You remain silent.

To sum-

1. I believe a case can be made for violations for 3.6 &3.8. Reasonable minds may differ, but at least I have done some research. I just wish I had access to some of your fancy books.

2. I believe this is a 1.2 violation, which is obvious from the language of the code.

3. I, along with every other person who has seriously examined precedent, knows that this is an 8.4 violation. I have given reasons, and I have even provided you with research. You, with all your books, have done jack. If you wish to contribute then, well, contribute.
1.21.2007 8:14pm
Big Bill (mail):
What Stimson said was inoffensive. Compare with the vitriolic statements made about enemy combatants and their counsel before and during the Nuremberg trials.

But of course the Germans were REAL combatants, so unlike the poor, weak, misguided, ineffectual peasantry held at Guantanamo who really do deserve a real American trial just like a real American citizen. Heck, they almost deserve our sympathy, for Heavens's sake!

So how many Wall Street attorneys volunteered to defend Himmler and friends pro bono? Any historians?
1.21.2007 10:03pm
SmokeVanThorn (mail):
How does that "I said, now disprove it - look it up yourself" stuff work with judges? Does it work better than citing cases that have general statements that seem to support you but facts and holdings that go against you?
1.21.2007 10:17pm
Colin (mail):
What exactly are you looking for, other than chapter and verse citations to specific rules and cases? And what exactly are you offering in return, other than snide remarks? Mumbled asides about how unpersuasive his case is, or how he bears the "burden of proof" (what burden does a bulletin board argument create?), don't establish any case of your own. It just sounds like partisan rancor. Maybe you wouldn't mind explaining why you don't think 1.2, 3., 3.8, and 8.4 apply? Or why you feel compelled to make rude little comments about how Loki didn't read Gentile?

I don't actually agree with Loki13's ultimate conclusions, and I find his arguments somewhat unpersuasive on the merits, but at least his comments provide substance to read and digest. Your responses are mostly snide complaints. In a way, this exchange is an example of the best and the worst that VC commentary threads have to offer - legal arguments backed up with as much in the way of citation that could reasonably be expected considering the context, followed by a party-line naysayer (of any particular party) who just wants to make sneering personal comments and refuses to engage in a discussion. Guess which one you are?

While you're concerned about "[h]ow does that . . . stuff work with judges," you might consider Loki13's original point:

There seem to be one group of commenters that are truly interested in points of law, and discussing the different approaches you can take to political, legal, and economic issues. Another group of posters simply want to issue their tired right-wing talking points (note- I am not saying that there are not tired left-wing talking points, but, well, this blog doesn't really attract that type).

Your posts are much more persuasive than his are, but only as proof of this point.
1.22.2007 12:21am