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.

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{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.)