DC bar association goes after NSA whistleblowing lawyer

The District of Columbia bar is pursuing ethics charges against a former Department of Justice lawyer who has said he was one of the sources for a 2005 article in The New York Times about the National Security Agency’s program of wiretapping without warrants. http://www.nytimes.com/2016/01/28/us/politics/ex-department-of-justice-lawyer-faces-penalties-in-leak-of-nsa-program.html?rref=collection%2Fsectioncollection%2Fus&action=click&contentCollection=us&region=stream&module=stream_unit&version=latest&contentPlacement=11&pgtype=sectionfront
This week, the District of Columbia Office of Disciplinary Counsel made public an ethics charge sheet against Thomas M. Tamm, who told Newsweek in December 2008 that he had called one of the reporters who wrote that article, Eric Lichtblau, from a pay phone in 2004 and informed him that the government had some kind of secret, illegal surveillance program.
The Bush administration started the program in October 2001, bypassing the Foreign Intelligence Surveillance Act. Mr. Tamm had learned that information from a secret program that was going into applications the Justice Department was making to the nation’s intelligence court for traditional wiretap orders in national security cases, which he helped prepare, although he did not know the details.
Mr. Lichtblau has never confirmed whether he spoke to Mr. Tamm, and he and James Risen, his co-author, have said they had many sources for the article. Mr. Risen was also investigating the program before the two reporters realized they were working on the same subject and teamed up; they won a Pulitzer Prize in 2006.
Despite Mr. Tamm’s public confession, the Justice Department decided in 2010 not to prosecute him. But in 2009, the bar ethics office opened an investigation into whether Mr. Tamm, who works as a public defender in Maryland, had violated ethics rules. Late last month, Hamilton P. Fox III, an assistant disciplinary counsel, signed off on pursuing two legal ethics charges.
The first is that Mr. Tamm committed a violation when he learned that his organization may have been breaking the law but failed to report the problem internally, including to its highest officer, the attorney general.
The attorney general at the time, John Ashcroft, already knew about the program. He had signed off on it from the start.
The other charge is that Mr. Tamm violated another rule by telling a reporter information that he had learned in confidence as part of a lawyer-client relationship, the disclosure of which “would be embarrassing, or would likely to be detrimental, to the client.”
The potential outcome ranges from no discipline and various reprimands to disbarment. Typically, bar groups in other states echo ethics discipline imposed by other jurisdictions.
Paul Kemp, a lawyer representing Mr. Tamm, said they would file a written response in the next two weeks.
“This guy has tried to move on with his life after being torn up and investigated for four years by the Justice Department, and now this comes out in 2016?” Mr. Kemp said.
Mr. Kemp said the Maryland bar had separately investigated Mr. Tamm and decided in 2009 not to bring any ethics charges. The District of Columbia bar website shows that his bar membership has been suspended for nonpayment of dues.
The charges were first reported on Tuesday by the National Law Journal.
Wallace Shipp Jr., the District of Columbia disciplinary counsel, said that he could not comment on the specifics of Mr. Tamm’s case, but that his office had decided to open the investigation in 2009 based on news media reports. When asked why it waited until now to move forward, he said that the office was working through a backlog.
Mr. Shipp, known as Gene, said lawyers facing ethics charges first have a hearing before a three-member committee, which then sends a report to a nine-member Board of Professional Responsibility. Any finding of a violation or sanction can be appealed to court.

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