Nov 07, 2019 09:23 UTC

According to Rule 8.4 of the ABA’s Model Rules of Professional Conduct, “It is professional misconduct for an American lawyer to … engage in conduct that is prejudicial to the administration of justice.”

In addition, the comment to this rule states, “Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers.”

The following is an article in this regard written by 'Elliot D. Cohen', an ethicist and political analyst, under the heading: "William Barr should be disbarred for his misconduct as US Attorney General." The article has appeared on the frontpage of the 'Truthout.org'.

A petition is circulating to disbar U.S. Attorney General William P. Barr from practicing law in New York and the District of Columbia, where he is licensed. The petition charges that Barr should be disbarred for conduct largely pursued in his present capacity as attorney general. There is, in fact, substantial evidence to back up the charge that Barr satisfies the legal criteria for disbarment pursuant to the American Bar Association’s (ABA) Model Rules of Professional Conduct; and the New York and Washington, D.C., bar associations should accordingly take heed in acting in the best interest of the American people.

A primary function of the US Justice Department, which the attorney general directs, is “to ensure fair and impartial administration of justice for all Americans.” Sadly, the Justice Department under Barr has not lived up to its charge. A case in point has been Barr’s attempt to block a recent intelligence community whistleblower’s complaint that mentioned Barr himself as complicit in President Donald Trump’s alleged attempt to solicit interference from Ukraine in the 2020 U.S. election.

According to the complaint, in a call between Trump and Ukrainian President Volodymyr Zelensky, Trump pressured Zelensky to “meet or speak with two people the President named explicitly as his personal envoys on these matters, Rudy Giuliani and Attorney General William Barr, to whom the President referred multiple times in tandem.”

The whistleblower brought his complaint to the inspector general of the intelligence community, who found the complaint to be credible, and in turn sent the complaint to the director of national intelligence. The Intelligence Community Whistleblower Protection Act clearly requires the director of national intelligence to send whistleblower complaints found to be credible by the inspector general to the congressional intelligence committees. Instead of complying with this law, Barr refused to allow the complaint that implicated him to be sent to US Congress, telling the director of national intelligence that the Justice Department would handle the criminal referral against Trump.

About four weeks later, Barr’s Justice Department concluded that Trump had not violated any campaign finance laws. Clearly, Barr violated the Whistleblower Protection Act in blocking a complaint that involved him, and clearly had a conflict of interest in settling the criminality of charges implicating him without recusing himself.

Inasmuch as the very same whistleblower complaint implicating Barr became the basis for an ongoing impeachment inquiry, the New York City Bar Association has recently urged Barr to “recuse himself from any ongoing or future review by DOJ of Ukraine-related issues in which Barr is involved.” It said that, in having failed to recuse himself thus far, he has undermined his “unique role in safeguarding the rule of law.” It added, “If he fails to do so, he should resign or, failing that, be subject to sanctions, including possible removal, by Congress.”

While the New York City Bar Association stopped short of recommending disbarment, there is a strong basis for concluding that Barr’s prior conduct, as described, already justifies disbarment.

According to Rule 8.4 of the ABA’s Model Rules of Professional Conduct, “It is professional misconduct for a lawyer to … engage in conduct that is prejudicial to the administration of justice.” In addition, the comment to this rule states, “Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers.”

In failing to comply with the Whistleblower Protection Act by blocking a complaint involving himself to be sent to the congressional intelligence committees, especially a complaint that has become the basis of a full blown impeachment inquiry by the very same congressional committees, Barr clearly engaged in conduct that was “prejudicial to the administration of justice.” Because a violation of a disciplinary rule such as Rule 8.4 of the ABA’s Model Rules renders an attorney subject to disbarment, there is solid basis to disbar Barr in New York and the District of Columbia where he is currently licensed to practice law.

Further, according to paragraph (a) of Rule 1.7 of the ABA’s Model Rules, “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if … there is a significant risk that the representation of one or more clients will be materially limited … by a personal interest of the lawyer.”

Clearly, Barr had a conflict of interest when he attempted to block the whistleblower complaint from reaching Congress because there was a significant risk that the “representation of one or more clients” would be “materially limited by a personal interest of the lawyer.” First and foremost, the attorney general represents the people of the United States, not Donald Trump. In other words, “American people” are Barr’s clients. Unfortunately, Barr having himself been implicated in the complaint he attempted to block, portends a personal interest that materially limits his representation of the American people.

Further, as the circulating petition points out, Barr’s son-in-law, Tyler McGaughey, has served as an attorney for the White House Counsel’s Office where he has advised the president on legal matters related to the presidency and his office. As such, Barr has had a further conflict of interest in representing the American people in matters concerning the president, including (but not limited to) the congressional impeachment inquiry. His personal interest in his son-in-law’s job security could materially limit this representation.

Of course, Barr can simply deny that his son-in-law’s professional relation to Trump — or even Barr’s having been implicated in Trump’s alleged attempt to involve Ukraine in the 2020 election — has affected his legal judgment. Indeed, Rule 1.7 addresses this possible rebuttal. According to paragraph (b) of Rule 1.7, it is permissible for a lawyer who has a conflict of interest, pursuant to paragraph (a), to represent a client if, among other conditions “… the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.” However, among these other conditions is the requirement that “each affected client gives informed consent, confirmed in writing.”

Inasmuch as Barr, as U.S. attorney general, represents each and every American citizen, he would, strictly speaking, need to have obtained the written informed consent of every American citizen to remain attorney general under the conflicts of interest that have existed for him pursuant to paragraph (a) of Rule 1.7.

Of course, the United States is a republic and the will of the people is presumed to be reflected by its elected representatives. However, while Barr’s son-in-law’s intention to go to work for the president was known prior to Barr’s Senate confirmation, the latter confirmation was contentious, with only three Democrats voting to confirm him. So, “each affected client,” including Democratic ones, could hardly be said to have given written, informed consent through their representatives’ votes. This fact is vital because Barr is not the attorney general of Republicans only; he is the attorney general of each and every American. Further, there is clearly no basis for claiming that Barr had the informed consent of the American people to serve as their attorney general while having been implicated in the whistleblower complaint.

In fact, far from seeking the informed consent of the American people, the aforementioned actions Barr had undertaken to prevent Congress from seeing the complaint clearly demonstrate that he tried to prevent their congressional representatives from being informed about his conflict of interest.

Therefore, because Barr has proceeded to represent the American people, notwithstanding clear, unequivocal conflicts of interest pursuant to both paragraphs (a) and (b) of Rule 1.7 of the ABA’s Model Rules, and having engaged in conduct “prejudicial to the administration of justice” pursuant to Rule 8.4 of the ABA’s Model Rules, Barr should be disbarred.

If Barr were disbarred, could he continue to serve as attorney general?

According to US Justice Department requirements for the job of attorney general, an applicant must be an active member of the bar of any U.S. jurisdiction. If Barr were disbarred in each of the jurisdictions in which he is licensed to practice, he would no longer satisfy the minimum requirements for holding this office. Thus, he would need to be removed from office.

The New York and Washington, D.C., bar associations need to perform their ethics oversight role by disbarring Barr, just as President Bill Clinton was disbarred after he intentionally misled a tribunal while under oath about his inappropriate affairs with his female secretary. This would clear the way for replacing Barr with an attorney general worthy of representing the American people.

ME

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