Question to Any Legal Expert Here Regarding Bybee

[PopSixSquish]

Would the fact that this fella signed the torture memo as approved be enough for a defense attorney or an appellate attorney to argue judicial bais on behalf of his/her client? I can think of a few different situations where the case could be made that he would have to recuse himself from proceedings.

If every case which goes before him has this possiblity, is this an angle to put pressure on him to resign? But if he had any honor to begin with, he wouldn't have signed the memos...

[vaberella]

1. I'll bump this for a response. n/t

[Geoff R. Casavant]

2. Not sure exactly what you mean, here.

If a case came up that was based in some way on the memos Bybee signed, then yes, he would need to recuse himself. But if the case does not directly concern the memos, he would not have to recuse himself just because he's an idiot jurist.

On the other hand, and I have not read the actual memos themselves, it seems to me any attorney who reads the memos and is licensed in the same jurisdiction as Bybee arguably has a duty to file a complaint for disciplinary proceedings with the appropriate bar association.

[AZ Criminal JD]

3. Exactly what section of the Code of Ethics is violated?

Since you are saying "any attorney" "has a duty to file a complaint".

[Geoff R. Casavant]

6. Well, I don't know what state Bybee is licensed in --

so I'm forced to look at the ABA Model Rules:

Rule 1.2(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent . . .

Rule 1.16(a) A lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if . . . the representation will result in violation of the Rules of Professional Conduct or other law . . . .

Rule 1.16(b) A lawyer may withdraw from representing a client if . . . the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent . . . the client has used the lawyer's services to perpetrate a crime or fraud . . . (or) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement . . . .

Rule 2.1 In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.

Rule 4.1 In the course of representing a client a lawyer shall not knowingly . . . make a false statement of material fact or law to a third person; or . . . fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client . . . .

Rule 8.4 It is professional misconduct for a lawyer to . . . violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; . . . commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation . . . .

And finally:

Rule 8.3(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

[jberryhill]

7. He doesn't need to maintain his license....

...and I would guess a lot of judges allow their license to expire.

[jberryhill]

4. No

[TorchTheWitch]

5. Opinion piece by attorney in Philly Inquirer

Here's a snip of an opinion piece about Bybee and his signing off on the torture memos. While it doesn't address your question of recusing himself from certain cases it does address why he should resign completely, and I absolutely agree with that...

http://www.philly.com/philly/opinion/20090426_Judge_Bybee_s_cruelty__In_approving_torture__his_remoteness_from_the_actual_torturers_increases_his_degree_of_responsibility_.html
Sun, Apr. 26, 2009
by Jon B. Eisenberg

Judge Bybee's cruelty: In approving torture, his remoteness from the actual torturers increases his degree of responsibility.

Jon B. Eisenberg is one of the lawyers representing the plaintiffs in a case challenging President George W. Bush's warrantless wiretapping program

And she quoted from the judgment against Eichmann: "he extent to which any one of the many criminals was close to or remote from the actual killer of the victim means nothing, as far as the measure of his responsibility is concerned. On the contrary, in general the degree of responsibility increases as we draw further away from the man who uses the fatal instrument with his own hands."

Bybee did not write the torture memo he signed; it was written by John Yoo, then at the Department of Justice's Office of Legal Counsel and currently a law school professor who writes a monthly column for The Inquirer. Bybee just signed off on the memo, two desks removed from the torture chamber. Did he even read it? He must have. Did he think much about it? How could he have, and then signed such an abhorrent thing? This is evil thoughtlessness.

The judgment against Eichmann speaks to Bybee: Far from absolving him of guilt, his remoteness from the actual torturers - his thoughtlessness - increases the degree of his responsibility. His is a special kind of evil - the evil of nonchalance where there should be outrage.

Arendt quoted Eichmann's defense attorney as saying: "Eichmann feels guilty before God, not before the law."

I wonder whether Bybee feels guilty before God. He certainly has no business being a federal judge. His presence on the Ninth Circuit Court of Appeals brings disgrace to that court. He should resign.