There is a disturbing proceeding unfolding before the the District of Columbia Office of Disciplinary Counsel where Thomas Tamm, a former U.S. Department of Justice lawyer who leaked information to the press about warrantless domestic spying under President George W. Bush, is facing legal ethics charges in Washington. Tamm is viewed as a hero by many in exposing the program, but even among his detractors there are those who view him as a whistleblower. The intervention of the DC Bar into the case is troubling given the various policy and legal questions over his status in exposing the program.
The thrust of the ethical charges is the allegation that Tamm should have gone to his supervisors rather than to a New York Times reporter in raising his questions about the surveillance program. Now a public defender in Maryland, Tamm worked at the Justice Department Office of Intelligence Policy and Review in 2003, which included asking the Foreign Intelligence Surveillance Court for electronic surveillance warrants. Tamm said that he did raise the program with colleagues who agreed that it was was probably illegal. In 2004, he contacted the New York Times which later won a Pulitzer Prize in 2006 for its reporting on the surveillance program. The Justice Department declined to prosecute Tamm.
However, prosecutors sought to use the D.C. bar to eke out punishment under the theory that he had failed to refer information about possible illegal activity to higher ups at the Justice Department and that he disclosed the “confidences or secrets” of his client—the Justice Department—to a reporter.
D.C. Disciplinary Counsel Wallace Shipp III opened the formal case against him in late December.
This case involves difficult questions of a whistleblower who has knowledge of what is viewed by many as an illegal operation that endangered the privacy of a large part of the population. The use of the D.C. Bar to punish Tamm is clearly an effort to chill future whistleblowers in seeking to expose such programs. Shipp and the Bar seem all to willing to play that role. This is not a case where a lawyer exposed information to an opposing party or sought to personally gain from a breach of confidentiality. This is a case where a lawyer was trying to protect the public interest.
What is fascinating is that key individuals associated with the Bush Torture Program are still practicing without any penalty of any kind like John Yoo. Jay Bybee was given life tenure to serve on the United States Court of Appeals for the Ninth Circuit, where he still issues judgments on other citizens. Yet, Tamm (who is serving the public interest as a low-paid, overworked public defender) is facing disbarment before the D.C. Bar?
What do you think?
Source: National Law Journal
The number of piblic officials who do not think that they work for the public continues to astonish me. A government lawyer should consider the public his client, not elected officials who want to keep secrets from the people who elected them. Whe was the last time you heard or read the term “public servant,” by the way?
We had a case here in San Diego where the Mayor was doing the “pay to play” thing. Make a contribution to the mayor’s favorite project and he would give you the permit for the project you are building. The City Attorney, who is elected directly by the voters, called him out on it and the mayor was furious. He claimed the City Attorney worked for him and was supposed to keep his business “confidential” as a matter of attorney/client issue. The City Attorney said he did not work for the mayor but worked for the people who elected him. The mayor filed suit with state court, which refused to hear the issue.
The mayor was not Filner, who resigned over his inability to keep his hands off of the females who worked under his supervision, but was the one before him. San Diego governance is seldom dull.
Thomas Tamm is another American hero being persecuted by our government.
If the The illegal activity was on going which I believe it was. I would argue that he was free to disclose under the crime fraud exception to the attorney client privilege.
As to the activities of the bar, it always amazes me that attorneys get away with a using their clients and taking advantage of them in a myriad of ways while the bar stands must but now they are going to become accomplices in silencing whistleblowers….now that’s ethical!
JT noted the Justice Department did not prosecute Mr. Tamm. This is a question of whether Mr. Tamm violated the ethics of his profession by breaching attorney-client privilege. For the record, I am against any program that permits government spying of any type without a properly obtained warrant, and believe Mr. Tamm did the right thing. But that’s not the issue. Suppose he disclosed privileged information disclosed by one of the defendants he represents through the Public Defenders Office, even if in the best interests of the public who pays his salary. How would you look at him? We may praise his actions, but that does not mean that he complied with accepted professional ethics, and the Bar should act accordingly.
It doesn’t surprise me that Obama’s (UN) Justice Dept wants to prosecute a tattle tale or be in the shadows whilst it’s done.
It also doesn’t surprise me that Obama has done a lot worse, than what this guy exposed Bush for and yet, we hear crickets.
http://jjusa.org/wp-content/uploads/2014/08/Nixon-v.-Obama.jpg
Many people do not realize that client confidentiality is a much broader concept than the attorney-client privilege. Unless already public, virtually everything learned by a lawyer in the course of a representation is deemed confidential.
Tamm should be compensated for his exemplary performance in upholding the law to protect the public. If he violated some procedural rule or concept then that is the forum wherein he should be dealt with, but in full public view. The law belongs to the people and is accountable to the people. The law only works when it is clear, precise, and transparent. Those who are versed in the law and hold positions of authority within the structure of the law that are found wanting in their responsibilities should be doubly punished. A bully is a bully is a bully.
Also, as to his failure to notify his superiors: Is the Justice Department claiming it didn’t know about it’s own warrantless surveillance program?
I’m with BarkinDog on this one. The client is the public.
Moreover, this disclosure concerned ongoing and future criminal activity. How is that privileged?
I can attest that Mr. Tamm has been a hardworking and ethical public defender in Maryland for the past several years. That office is underfunded and overworked as it is, and if he is lost to reciprocal disbarment, we all lose.
Reblogged this on Scoop Feed.
They set up laws to legalize harassment of normal citizens, an attorney exposes them and you think they’ll let him off scot free? nooooo. They’ll harass him too. I agree with Barkindog. You can’t just sit and take it. Bundy’s should’ve fought smarter too, they’d have had more sympathy.
This may well be a situation where Tamm should not be disciplined, but lawyers are not simply free to disclose crimes and misdemeanors if the information was obtained in confidence. The disciplinary authorities in DC have nothing to do with Obama. They are not federal agents.
Doesn’t the DC Bar do progressive discipline, or deferred prosecution? This isn’t an act involving dishonesty, theft, fraud, etc. If he’s disciplined at all it should be nothing but a reprimand.
But then again, we don’t live in a democracy, we live in a corporate oligarchy where the masses are fooled into believing they live in a democracy.
We also don’t live in a nation of laws, only a nation that pretends to be a nation of laws, and those with power can use their power to abuse the hell out of members of the public, or members of the profession, only to then drop charges, or drop an investigation, when nothing is there.
The Wisconsin Office of Lawyer Regulation, for example, has subjected me to years of investigation over numerous issues, such as refusing to offer a prison inmate a legal loan, or calling an inmate by his given name, rather than by a religious name that the Wisconsin Court of Appeals had already ruled, in a public opinion, that the inmate had forfeited.
In the investigation where I was accused of violating an inmate’s constitutional rights by refusing to extend a legal loan to him (even though he already owed over a thousand dollars and I was prohibited by Wisconsin law from authorizing a loan for more), I pointed out to the investigator (I believe Cynthia Schally) at the outset that OLR was hardly the forum for litigating the parameters of an inmate’s rights to free court access and free legal supplies, but she ignored that, and ignored the language of the statute that I subsequently pointed out, and carried on with her absurd, plodding investigation that lasted over six months.
Once the OLR investigated me because I had reported a crime (simulating legal process) to the Chippewa County District Attorney (the DA’s office saw fit to charge the perp with four felonies, and then pled the perp down to witness intimidation). In that case, as I pointed out to OLR, their decision to investigate me actually constituted victim intimidation, as a party to a crime.
Ultimately, the Wisconsin OLR has had to concede, in each and every one of the numerous investigations that it has commenced against me, that I have done nothing wrong and had not violated any ethical cannon. But it is a way of chilling people, and chilling speech. What attorney wants to spend hundreds of hours of their life stressed out, answering questions, producing documents, having their blood pressure raised and their life-span shortened? The way to avoid this being subjected to this sort of abuse by an unaccountable body is to keep way back from the edges of the ethical rules and over-police oneself, in other words, to allow those in power to abuse their power.
Attorney Tamm has my sympathies. I’ve been put through hell and back myself by the Wisconsin OLR, only to be fully exonerated every time. No doubt, however, that this has taken years off of my life. And no doubt Attorney Tamm’s life will similarly be shortened by all of the stress.
Just another example of Obama’s campaign against knowledge by persecuting those that tell the truth that the Manchurian (Republican) president and his “friends” don’t want known. Oh my, if the public only knew what the government doesn’t want them to know. Well maybe nothing, this is a nation of sheeple.
Mr. Tamm worked for the American people – he did his duty.
More than anything, this case illustrates that “justice” is a nebulous thing in Washington.
As a side note, this case also illustrates that the “insiders” of Washington are a vindictive bunch more concerned about their tribe than their responsibilities to both the country and the Constitution.
The “client” in this situation is “the public”. There is no violation for revealing to the public the crimes and misdemeanors of others.
A “whistleblower” is a human who exercises his First Amendment Constitutional right and duty to petition his government for redress of grievances. The grievances are crimes. His superiors in the Dept of Justice hid the crimes and failed to disclose them to Congress fore example. His method of telling the public was a method of petitioning his government for redress of grievances.
This is protected conduct, protected speech and a duty.
The person who is prosecuting him is violating his civil rights. The person is a government agent and is therefore may be sued under the federal civil rights act 42 U.S.C. Section 1983 and there is another statute to employ against federal agents. He should file his civil rights law suit now. The bar association is acting outside the box. This conduct was not a violation of any so called ethical code of a lawyer. The bar association may be involved in a conspiracy and might be sued.
Those of you who belong to the DC Bar need to file a Bar Complaint against the DC Bar and the complainers such as Shipp for violating this man’s right to practice law. Those of you (JT) in the DC Bar need to call for a meeting to discuss this travesty of justice. Today.
There are lots of client confidences maintained by lawyers that one could argue should be disclosed as a matter of “public policy.” That alone is insufficient to justify a breach. You need to drill down on the recognized exceptions to the duty of confidentiality and whether any of them apply here.
Mr. Tamm violated attorney-client privilege. He should be disciplined.