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Wednesday, September 08, 2004

With ethics complaint against John O'Neill, Houston lawyer not only barks up the wrong tree, but misidentifies the squirrel

Is anyone's law license in jeopardy as a result of the SwiftVets versus Kerry controversy?

With the very notable exception of Lee Cearnal's August 16th op-ed in the Houston Chronicle, my hometown press here in Houston has mostly been missing-in-action in the SwiftVets vs. Kerry debate, notwithstanding the fact that SwiftVets' spokesman John O'Neill has lived and practiced law here for three decades and that several other SwiftVets live in the Houston area.  Mr. Cearnal is the Chronicle's special projects editor, and his op-ed's title — "Where's my colleagues' interest in Kerry's war records?" — remains a mostly unanswered question.

But into the fray wades the hard-left-leaning Houston Press, with a blurb entitled "Fog of War" (scroll down, it's the next-to-last entry):

Maybe you've heard lately about Houston attorney John O'Neill. Something about Swift boats and Nam, and John Kerry having a wimpy military record that makes George W. look like Rambo.

O'Neill's book Unfit for Command has launched countless shouting matches on overheated cable shows: Democrats say U.S. Navy records and Kerry's crewmates refute O'Neill's claims; O'Neill's supporters loudly change the subject.

It's hard to imagine how the Press could have started off more bass-ackwards than this.  The preferred early tactic of Kerry's supporters like Lanny Davis and James Carville was to literally shout down  O'Neill's efforts at calm explanation — as this CNN transcript clearly reveals.  (Even Davis later had the decency to express some small measure of shame for that tactic.)  O'Neill actually loves to talk about the documents and the witnesses, because the documents reveal how Sen. Kerry gamed the system to get his medals, and because there are witnesses aplenty whose first-hand, on-the-scene observations (many of them sworn in affidavit form) directly contradict those of Sen. Kerry and his small "Band of Brothers."

But on to the breaking news, as revealed by the Press (bracketed portions in original):

Now there's a chance the whole thing will play out in an unusual arena: the normally staid, under-the-radar offices of the State Bar of Texas.

A Houston attorney is one of several statewide to file ethics charges against O'Neill, saying he has violated bar rules by spreading lies, as opposed to all those other lawyers who tell only the truth.

"If we lawyers live scared to death each day of violating the ethics rules, why should he be able to violate them so publicly?" she asks. Her complaint includes TV transcripts of O'Neill's claims and newspaper articles debunking them.

(No Rambette here -- she's filed the complaint anonymously. Because, she says, going public "would make my practice [of law] impossible…Things will probably happen anyway, but I'm not going to hand [my name] to them on a silver platter.")

The wording here suggests that even the Press recognized that it's a bit of a stretch to suggest that "bar rules" prohibit lawyers, in general, from "spreading lies."  And to its credit, the Press actually asked someone at the State Bar of Texas for some clarification — a good idea, since Ms. Non-Rambette is clearly clueless about the rules that govern her, my, Mr. O'Neill's, and Sen. Kerry's profession:

Mark Pinckard, projects director for the bar's disciplinary counsel, says any investigation would first have to determine whether O'Neill's actions came in the course of being a lawyer. If not, the bar doesn't get involved.

But what if it does? Will Pinckard be issuing subpoenas to President Kerry? Will he, a now-unknown Austin lawyer, be the person who finally gets to the bottom of what happened 35 years ago on those war-torn rivers?

"Things could be interesting," he says, only half-seriously. "This could make or break my name."

"[O]nly half-seriously"?  How about, "trying hard not to dissolve into a fit of giggling"?

The disciplinary rules of ethics (drawn from the old Canons of Professional Ethics) that bind lawyers in Texas pretty closely parallel those in other states.  Because it's a felony involving "moral turpitude" and deemed incompatible with the moral character required to hold a law license, deliberately lying under oath on a material matter in a civil deposition or a grand jury proceeding can get one's law license pulled in Texas or in (to pick another state entirely at random), say, Arkansas. 

In this dispute, however, there've been no such judicial proceedings in which any of the SwiftVets or Sen. Kerry has testified.  And while many of the other SwiftVets have indeed executed sworn affidavits that are subject to the penalties of perjury, Mr. O'Neill is not, and has never claimed to be, a first-hand witness to any of Sen. Kerry's service for the very simple reason that their tours in the Swift Boats did not overlap.  (This was indeed one of the points repeatedly if inanely shouted by Messrs. Carville and Davis at Mr. O'Neill.)  Mr. O'Neill has served as a spokesman for the group, is personally knowledgeable about Swift Boat operations in general, and certainly is among those with "standing" to complain of Sen. Kerry's characterizations of the Americans who fought in Vietnam; but I don't recall seeing an affidavit from him, nor any reason why he would or should have executed one.

So what Ms. Non-Rambette must have been referring to, I surmise, was the former Canon of Professional Ethics prescribing "Candor to the Tribunal," which in Texas now resides in Rule 3.03 of the Texas Disciplinary Rules of Professional Conduct.{note1}  The short and entirely complete rebuttal to her complaint — even assuming for purposes of argument that Mr. O'Neill's statements are "lies" (and I believe they aren't, for a variety of reasons) — is that none of Mr. O'Neill's statements in this matter have been to a "tribunal" within the meaning of the Rules.{note2}

Sen. Kerry is, of course, a member of the bar of the Commonwealth of Massachusetts.  Although he's currently on "inactive status" — presumably because he's not been practicing law while busy voting for them (before he voted against them){note3} — Sen. Kerry's licensure is subject to continuing supervision and review by the Massachusetts Board of Bar Overseers.  If Mr. O'Neill's statements were indeed grounds to attack his law license in Texas, so, too, would be Sen. Kerry's — in which case the Massachusetts Board of Bar Overseers might find itself looking into the Christmas in Cambodia fairy tale, among others.

But as much as John O'Neill would love to have any forum in which he could compel the production of documents and the appearance and testimony of witnesses under oath, that's simply not going to happen in connection either with his own or Sen. Kerry's law licenses.  I think Ms. Non-Rambette has misidentified the squirrel here — but in any event, she's barking up the wrong tree.


{note1} Rule 3.03, entitled "Candor Toward the Tribunal," provides:

(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal;

(2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act;

(3) in an ex parte proceeding, fail to disclose to the tribunal an unprivileged fact which the lawyer reasonably believes should be known by that entity for it to make an informed decision;

(4) fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(5) offer or use evidence that the lawyer knows to be false.

(b) If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts.

(c) The duties stated in paragraphs (a) and (b) continue until remedial legal measures are no longer reasonably possible.

Tex. Disciplinary R. Prof'l Conduct 3.03, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (Vernon Supp. 2004) (Tex. State Bar R. art. X, § 9).  This closely tracks Rule 3.3 of the American Bar Association's Model Rules of Professional Conduct, which Massachusetts has also followed since 1997.

{note2} Rule 1.0(m), the definitional section in the Model Code, defines "tribunal" thusly, in a way which pretty clearly excludes arguments addressed to the public in a national election:

"Tribunal" denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party's interests in a particular matter.

The Texas version uses different language, but also clearly doesn't embrace public political debate within its scope:

Tribunal denotes any governmental body or official or any other person engaged in a process of resolving a particular dispute or controversy. Tribunal includes such institutions as courts and administrative agencies when engaging in adjudicatory or licensing activities as defined by applicable law or rules of practice or procedure, as well as judges, magistrates, special masters, referees, arbitrators, mediators, hearing officers and comparable persons empowered to resolve or to recommend a resolution of a par-ticular matter; but it does not include jurors, prospective jurors, legislative bodies or their committees, members or staffs, nor does it include other governmental bodies when acting in a legislative or rule-making capacity.

Thus, even Sen. Kerry's whoppers on the floor of the Senate didn't come in a context in which that body was sitting as a "tribunal" — so his misstatements there of matters that were "seared — seared" into his memory, although they may properly affect the upcoming election, aren't likely to cost him his ticket to practice law.

{note3} Interestingly enough, the senior senator from Massachusetts has kept his homestate bar status "active."  That's rather odd, given that of the two of them, it's Teddy who's been noted for hands-on legislating, and Tall John who's been noted for show-horse quasi-prosecutorial roles.  And Teddy's also licensed and in active standing in the District of Columbia; Sen. Kerry isn't.

(Belated hat-tip to Kevin Whited, who alerted me to the Houston Press story by email and then linked to this post with kind words on his own blog.)

Posted by Beldar at 05:02 PM in Law (2006 & earlier), Politics (2006 & earlier), SwiftVets | Permalink


Other weblog posts, if any, whose authors have linked to With ethics complaint against John O'Neill, Houston lawyer not only barks up the wrong tree, but misidentifies the squirrel and sent a trackback ping are listed here:


(1) rdeat made the following comment | Sep 8, 2004 6:21:41 PM | Permalink

Is there something in the water in Texas? The left will stop at nothing to win the WH. Ben "the fraud" Barnes will be on C-BS to point the "dagger of death" at Bush. Can you enlighten us on your opinion of Barnes and the damage he might cause or if this will backfire like all the left's dirty tricks to date?

Also, I think this entire genre of attacks by the left is as disturbing as the claims of Fascism against the President. They own the media, thus the minds of most boob tube junkies; they make it seem as if you follow their dogma or fall in line to their thinking or you're a social outcast. That to me is the scariest form of state run, state controlled fascism. And the Democratic leadership is the leading force behind it.

(2) Al made the following comment | Sep 8, 2004 6:44:25 PM | Permalink

Can you possibly do a similar examination of the 'slander' and 'libel' approaches? No one has formally leveled such charges, but I'd be interested in a discussion on those two points too.

It boils down to 'Truth is always a viable defense', but with the affidavits and repeated public statements with deliberate 'intent'... isn't 'truth' the _only_ defense they could have?

That's the impression I get, and exposing myself to a billionaire's legal wrath is... not my cup of tea.

(3) Beldar made the following comment | Sep 8, 2004 6:52:28 PM | Permalink

rdeat, I've written about Barnes here.

Fascism is a word I avoid overusing or using imprecisely, like the word communism, because of those words' loaded connotations. We have a free press and free speech in America, for which I'm grateful. I'm not a fan of the mainstream media, and I applaud the growth and rising influence of the "new media" as a competing source of opinion and information, precisely because the antidote to the mainstream media's sheeplike behavior is a more open public debate using more means of communication.

There are indeed pressures — genuinely perceived by folks on both sides of the political aisle — to be politically correct (and liberal) or to rally round the flag and the President. But in this country, and in other parts of the free and democratic world, they're still relatively gentle pressures, merely social pressures — not something enforced by beheadings or public hangings. That's something all thoughtful Americans, of any political persuasion, should be able to agree to be thankful about.

Al, I've written about the libel/slander/defamation aspects of the SwiftVets vs. Kerry dispute here, and still hold to those views. Basically I don't think either side has a plausible case against the other, and that while the SwiftVets would welcome such a lawsuit because it would allow them to dig into things that Kerry's currently stonewalling, the Kerry camp is not stupid enough to give them that opportunity.

(4) Dan made the following comment | Sep 8, 2004 7:11:25 PM | Permalink

Hmmm, the only national pol I can think of that ran into trouble with his license was ... oh yeah, Bill Clinton.

(5) Al made the following comment | Sep 8, 2004 7:41:25 PM | Permalink

Beldar, I read it and it looked good.

Suppose for a second there's _any_ pro-Kerry 'Proof' still hidden in his remaining military and medical records.

_After_ the election, regardless of the outcome, the Swift Vets will still have said these things. Out of petty cash the Kerry's can sue them all individually into the ground - and they might have to show records that no longer matter except as proof.

I don't think _I_ would ever say any such thing in an affidavit unless I _already_ had the files in question to peruse and evaluate as to how much they countered my position.

Does that make any sense? Clearly 'the legal route' would look silly, but, well, that hasn't slowed down the slithering hunter yet.

(6) MaDr made the following comment | Sep 8, 2004 7:53:37 PM | Permalink

There's something very "chilling" to me about an unnamed accuser. Anyway Ms non-Rambette can be identified?

(7) Beldar made the following comment | Sep 8, 2004 8:11:15 PM | Permalink

MaDr, complaints to the Texas Bar can be kept anonymous at the complaintant's request, and indeed, the proceedings on them are generally kept confidential unless and until there's a public finding against the attorney.

Al, in any defamation proceeding, both sides would have to disclose the documentary evidence in their possession, or subject to their control. Kerry could be compelled to sign a Form 180, for example. None of the affidavits signed by the SwiftVets attempt to address what's in or not in records to which they haven't had access. The information available to them, whether complete or not, would be relevant to the question of whether any defamatory false statements they made were made with "actual malice" under the New York Times v. Sullivan standard for public figures. But yes, since objective truth is also a defense, the SwiftVets, if sued by Kerry, would also be able to get access to additional information via compulsory court processes that they otherwise haven't been able to get so far.

(8) Todd made the following comment | Sep 8, 2004 9:23:02 PM | Permalink

A couple of things. First, I read the transcript you cited on O'Neill's appearance on CNN. Carville's behavior was disgraceful. Would someone please put a bullet in this inbred son of a bitch? Davis was only slightly better. Neither one appeared to be even slightly interested in getting to the truth, or even finding out what O'Neill had to say.

Second, as I've said before, I would love it if Kerry would sue O'Neill et al. for defamation. That would be absolutely hilarious. But, since Kerry is trying to bury these stories rather than shed light upon them, that ain't gonna happen.

All of this (the complaint against O'Neill, Kitty Kelley's book, the CBS story, etc.) goes back to the Dems' trying to shoot the messenger before he can get the message out. If they had any ideas, they'd run on them. I don't think any of this nonsense is going to sway many voters, anymore than I think the nonsense being peddled by MoveOnForAmerica.Org is going to add to the numbers of Bush voters.

(9) John Dunshee made the following comment | Sep 8, 2004 10:17:49 PM | Permalink

Interesting, I didn't know that there had been ethics complaints filed against O'Neill in Texas. I did know that there have been ethics complaints filed [edited out per comment below — Beldar]. Hmmm, wonder who that might have been?

What is the status with other Swifties? How many of them are facing retaliation by Kerry supporters?

(10) Beldar made the following comment | Sep 9, 2004 1:11:39 AM | Permalink

Mr. Dunshee, I sincerely apologize for editing your comment just above this one, and was indeed already aware of the particular matter you wrote about in what I have deleted. I'm sure you meant no harm by it, but that particular matter is a vile, purely personal smear against one of the SwiftVets on something that is entirely unrelated to his own military service, much less Sen. Kerry's, and I do not intend to let my blog help spread it further through the internet.

The ethics complaint against O'Neill, by contrast, at least arguably has something to do with the ongoing public debate, and it's so obviously bogus (for reasons I posted about here) that I'm not terribly troubled by the notion that O'Neill might be embarrassed by my post here.

The example that you mentioned, and that I edited out, is extremely ugly, and has had painful personal and professional consequences for that individual. That he and the other SwiftVets have spoken out — knowing full well that such despicable responses were likely — is a tribute to their courage and commitment.

If Sen. Kerry has an ounce of decency, he'll fire whoever was responsible, and write a private letter of apology to the target of the smear. I doubt that will ever happen, however.

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