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Ethics

: Legal Ethics Forum

NYT: Criminal charges for OLC lawyers are not likely; referrals to state bars are likely

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Story here.  (nod to Volokh)



We've been waiting for the DOJ report from its Office of Professional Responsibility.  The NYT says that DOJ is unlikely to prosecute the lawyers criminally, but probably will refer the lawyers to the states bars where they are licensed.

I won't prejudge the report, but my view is that the DOJ ought to retain power to discipline lawyers for their conduct at DOJ, and that referrals to state bars are a second best solution.  There's a moral hazard in letting the DOJ opine about the behavior without being responsible for the ultimate decision on discipline.  And what state bars will have the institutional capability to independently analyze this issue?  OLC lawyers operate under a role that is unique, that is federal, and that is deeply complex.  As I understand it, under current law DOJ can't discipline lawyers who have left the DOJ.  If so, that should be changed for future cases.

Full post as published by Legal Ethics Forum on May 06, 2009 (boomark / email).

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