A Major Victory for JY

After four years, the report on JY and JB by the Justice Department's Office of Professional Responsibility has finally been released. As Patrick noted, we already had a post on a Newsweek report that the DOJ was not planning on referring JY and JB to their respective bar associations for professional misconduct.

But the released documents go much farther and are, quite frankly, astounding. The OPR Report finds that both JY and JB commited professional misconduct (JY, it claims, purposefully), and promises to notify the bar associations of the states in which they practice.

But the Report is accompanied by a 69-page memorandum by Associate Deputy Attorney General David Margolis, who writes,

For the reasons stated below, I do not adopt OPR's finding of misconduct. . . . OPR's own analytic framework defines "professional misconduct" such that a finding of misconduct depends on application of a known, unambiguous obligation or standard to the attorney's conduct. I am unpersuaded that OPR has identified such a standard. For this reason and based on the additional analysis below, I cannot adopt OPR's finding of misconduct, and I will not authorize OPR to refer its findings to the state bar disciplinary authorities in the jurisdictions where [JY] and [JB] are licensed.

Margolis's criticisms of the report are partly conveyed in the following segment:

In a departure from standard practice and without explanation, OPR in its initial two drafts analyzed the conduct of the attorneys without application of OPR's own standard analytic framework. See http://www.usdoj.gov/opr/framework.pdf/. This departure was not insignificant. I have held my current position within the Department for nearly seventeen years. During that time, I have reviewed almost every OPR report of investigation. OPR developed its framework over a decade ago and to the best of my recollection has applied it virtually without exception since that time.

That's not all. The memo notes that OPR provided then-AG Michael Mukasey and then-Deputy AG Mark Filip with a 191-page draft on December 23, 2008, only 20 days before it intended to release the report publicly. While agreeing that the JY/JB memos contained errors, Mukasey and Filip so strongly criticized the substance and conclusions of the draft that they requested that their letter conveying these criticisms be made public if the OPR Report was ever publicly released.

The reason why this is a big deal is that Margolis, Mukasey, and Filip are hugely respected "lions" in the legal profession. Margolis was described by by Legal Times as "one of the Justice Department's most respected officials, a lawyer with sterling reputation earned over 42 years of service at the department." (For that quote and a countervailing view by Harpers, see here.) Before becoming Attorney General (in 2007), Mukasey was one of the most respected District Judges in the Southern District of New York. (I've recently seen a hearing in which a N.Y. State trial judge gave greater deference to a Mukasey opinion on a point of N.Y. law than it did to the theoretically binding opinion of N.Y.'s highest court.) Filip, too, was formerly a District Judge in the Chicago. According to the AP, "he was ranked first among federal judges in terms of integrity and professionalism in a 2006 poll of Chicago-area attorneys."

It's important to note here that none of these three are defending the judgement of either JY or JB. But their criticisms of the OPR Report are pretty striking. I hope to read both documents over the weekend and have some more substantive comments. In the meantime, loonies on all sides of the debate can vent their rantings here.