Justice Department Will Not Punish Yoo and Bybee Because Most Lawyers Are Scum Anyway

Jack Balkin
from Balkinization
Friday, February 19, 2010

At long last we have the Department of Justice report on the professional conduct of John Yoo and Judge Jay Bybee in writing the infamous torture memos, along with previous versions of the Office of Professional Responsibility report and responses by Yoo and Bybee. Upon reviewing the OPR's report and recommendations, Associate Deputy Attorney General David Margolis concluded in a 69 page memo that the DOJ should release the Office of Professional Responsibility report for public review but that the Justice Department would not refer a finding of misconduct to state and local bar committees where Yoo and Bybee are members.

In deciding not to refer charges to state bar committees, Margolis does not tell us that Yoo and Bybee behaved admirably or according to the high standards that we should expect from Justice Department lawyers. Indeed, he says the opposite. Yoo and Bybee exercised poor judgment and let the Justice Department down. But Margolis argues that the Office of Professional Responsibility chose too high a standard to judge the professional responsibility of Yoo and Bybee. The OPR argued that Yoo and Bybee had "a duty to exercise independent legal judgment and to render thorough, objective, and candid legal advice." This standard, Margolis explained, is much too high a requirement and not one that Yoo and Bybee were previously warned was the standard to which they would be held.

I know what you are probably saying: shouldn't every government lawyer have to live up to this standard? Of course, they should, but the point is that this is a disciplinary proceeding. It's not about what people should do, but about how badly they have to screw things up before they are subject to professional sanctions.

Instead, Margolis argues that, judging by (among other things) a review of D.C. bar rules, the standard for attorney misconduct is set pretty damn low, and is only violated by lawyers who (here I put it colloquially) are the scum of the earth. Lawyers barely above the scum of the earth are therefore excused.

(Continued here.)

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