Virginia State Bar Punts on Lindsey Halligan Ethics Investigation
In a Nov. 14 letter, the Bar declined to initiate an ethics probe into the recently ousted top prosecutor for the Eastern District of Virginia.
The Virginia State Bar has declined to launch an ethics investigation into Lindsey Halligan, the recently ousted top prosecutor for the Eastern District of Virginia.
The move comes in response to a complaint filed last month by a watchdog group, Campaign for Accountability. The non-profit’s 17-page complaint alleged that Halligan may have violated professional ethics rules, Justice Department policies, and federal law while pursuing criminal cases against former FBI Director James Comey and New York Attorney General Letitia James.
In a letter explaining its decision not to open an investigation, the Virginia State Bar wrote in part:
“Whether criminal indictments were obtained through material misrepresentations of fact and done for political purposes falls within the authority of the court to determine and not this office. If the court determines that Ms. Halligan made false statements to the court and sanctions her for the conduct, the Virginia Bar can initiate an investigation. Whether a lawyer violated federal law or agency regulations is a matter for determination by federal law enforcement and not the Virginia State Bar.”
Responding to the Bar’s letter, Campaign for Accountability Executive Director Michelle Kuppersmith issued the following statement:
“If, when confronted with actions as egregious as Ms. Halligan’s, a state bar, which allegedly polices the conduct of its members, claims it can do nothing more than reiterate the findings of a court, what purpose does it serve? In any event, a court already has found Ms. Halligan made ‘fundamental misstatements of law.’ The courts have been doing their job in recognizing misconduct when they see it. State bars must do the same.”
This may not be the end of Halligan’s potential exposure to bar discipline. But for now, the Virginia State Bar’s decision appears to put the matter on pause.
Read my earlier reporting on Campaign for Accountability’s complaint here.
Wimps.
I've hardly been a fan of Ms. Halligan, but the decision of the Virginia State Bar doesn't surprise me. I was a prosecutor in a mid-Atlantic state for more than 25 years, doing state criminal appeals. On appeal, defendants found it easy to complain about the prosecutor's opening or closing argument. Some prosecutors were just bone-headed, and the case law on the subject very much favored the defense. It wasn't unusual during the course of a year to lose 3 or 4 appeals because the prosecutor seriously messed up closing argument. Though the state supreme court would fulminate about the prosecutor's idiocy, I don't recall anyone being referred to Disciplinary Counsel. My recollection was confirmed by looking at the state supreme court's Digest of Lawyer Discipline, which goes back 40 years or so; I didn't see the names of any prosecutors (a few defense attorneys though). Admittedly, I haven't done an exhaustive survey of bar disciplinary actions against prosecutors, but my impression is that across the country, prosecutors are not routinely charged with violating professional conduct rules based on in-court conduct.
In case anyone was wondering, attorneys for the Government are subject to state professional conduct rules and local Federal court rules. 28 USC §530B; 28 CFR §§77.1 to 77.5. There's also a Professional Responsibility Advisory Office (28 CFR §0.129). There's even an Office of Professional Responsibility (71 Fed. Reg. 54412 (Sept. 15, 2006)) (for all the good it seems to do at the moment).