This post is based on selections from this post regarding Leura Garrett Canary, the U.S. Attorney, MDAL, who was barred by legal ethics rules, i.e., recused, from participating in the prosecution of former Alabama Governor Don Siegelman, and this post which is my e-mail to the Alabama State Bar General Counsel, regarding Mrs. Canary’s continued participation in the prosecution of Gov. Siegelman after she claimed to have recused herself.

Tony McLain, General Counsel, Alabama State Bar
tony.mclain@alabar.org

Dear Mr. McLain,

I have been researching the conduct of various attorneys in the service of the government of the United States, whether that conduct is a violation of the rules of professional conduct with which each such attorney must comply and authoring factual allegations of the conduct of these attorneys that establish violations of the applicable rules of professional responsibility, including Alberto Gonzales, Kyle Sampson, Harriet Miers, Lisa Murkowski, John Yoo, Mark Everett Fuller, Monica Marie Goodling, Thomas W. Hartmann, Michael J. Elston, Patrick J. Rogers and, now, United States Attorney Leura Garrett Canary. Her claimed recusal from the prosecution of former Gov. Don Siegleman was and remains a sham and violates several of the rules of professional conduct of Alabama. These actions raise a substantial question as to her honesty, trustworthiness and fitness as a lawyer.

Mrs. Canary’s unethical conduct tarnishes the reputation of each member of the Alabama State Bar, including – if not especially – your own. Only a good faith investigation of Mrs. Canary by the Alabama State Bar Office of General Counsel and referral, if and when appropriate, to the Alabama State Bar Disciplinary Committee to answer for her violations of the Alabama Rules of Professional Conduct will undo the damage she has done to the legal profession in Alabama. If the reputations of the Department of Justice and the Alabama State Bar are ever to be salvaged, Mrs. Canary must be investigated by the Alabama State Bar Office of Legal Counsel and referred to the Alabama State Bar Disciplinary Committee to answer for her violations of the Alabama Rules of Professional Conduct .

Although not a formal complaint, the documentation of Ms. Canary’s conduct that I have prepared and included below* (and posted here at The Grievance Project and here at Firedoglake’s Oxdown Gazette) establish prima facie violations of the Alabama Rules of Professional Conduct. Pursuant to Rule 3(c) of the Alabama Rules of Disciplinary Procedure which permits you, as General Counsel, to initiate a disciplinary investigation or proceeding upon your "own motion in light of information received or acquired from any source[,]" it is incumbent on you to exercise your authority.

E.M./The Grievance Project

Copies to:

Alex Lafayette Holtsford, Jr., President, Montgomery Bar Association
aholtsford@nixholtsford.com

Sam Partridge, Assistant General Counsel, Alabama State Bar
sam.partridge@alabar.org

Robert E. Lusk, Jr., Assistant General Counsel, Alabama State Bar
robert.lusk@alabar.org

Jeremy W. McIntire, Assistant General Counsel, Alabama State Bar
jeremy.mcintire@alabar.org

John Mark White, President, Alabama State Bar
mwhite@whitearnolddowd.com

Thomas James Methvin, President-Elect, Alabama State Bar
tom.methvin@beasleyallen.com

Pamela Harnest Bucy, Vice President, Alabama State Bar
pbucy@law.ua.edu

Keith Byrne Norman, Secretary, Alabama State Bar
keith.norman@alabar.org

Samuel Neil Crosby, Past President, Alabama State Bar
snc@sgclaw.com

Walter Edgar McGowan, Executive Council, Alabama State Bar
wem@glsmgn.com

Maibeth Jernigan Porter, Executive Council, Alabama State Bar
mporter@maynardcooper.com

Richard J. R. Raleigh, Jr., Executive Council, Alabama State Bar
rraleigh@wilmerlee.com

Hon. Leura Garrett Canary, U.S. Attorney, Middle District of Alabama
PO Box 197
Montgomery, AL 36101-0197
Telephone: (334) 223-7280
leura.canary@usdoj.gov

Factual Allegations:

Leura Garrett Canary was nominated by Pres. George W. Bush to be the United States Attorney for the Middle District of Alabama. Since assuming this position in September 2001, Mrs. Canary has failed to adhere to even the most basic tenets of professional conduct required of her by her membership in the Alabama State Bar. The following analysis establishes that Mrs. Canary has violated her obligations under the Alabama Rules of Professional Conduct by her continued participation in the prosecution of Gov. Don Siegelman after her supposed recusal therefrom and that her conduct raises a substantial question as to her honesty, trustworthiness and fitness to practice law. Specifically, Leura Garrett Canary violated the following Alabama Rules of Professional Conduct:

RULE 1.16 DECLINING OR TERMINATING REPRESENTATION
RULE 3.3 CANDOR TOWARD THE TRIBUNAL
RULE 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL
RULE 3.5 IMPARTIALITY AND DECORUM OF THE TRIBUNAL
RULE 3.6 TRIAL PUBLICITY
RULE 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR
RULE 4.1 THRUTHFULNESS IN STATEMENTS TO OTHERS
RULE 5.1 RESPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER
RULE 5.4 PROFESSIONAL INDEPENDENCE OF A LAWYER
RULE 8.3 REPORTING PROFESSIONAL MISCONDUCT
RULE 8.4 MISCONDUCT

On May 16, 2002, Mrs. Canary clearly and unequivocally declared that she had recused herself from the prosecution of Gov. Siegelman stating in this press release that:

As to any matters pertaining to any current investigation of state officials or matters of state government which may or may not be underway, the Department of Justice has advised me that no actual conflicts of interest exist. However, out of an abundance of caution, I have requested that I be recused to avoid any question about my impartiality.

It is of the utmost importance to me, as a United States Attorney, that the people in the Middle District of Alabama and throughout the State have confidence in the manner in which matters are handled by me and by the office I serve and that no one has a basis under which to question the integrity of any investigation undertaken by my office. To that end, the Department has assigned responsibility for the supervision of any investigation regarding state officials or matters of state government to First Assistant United States Attorney Charles R. Niven.

Scott Horton, a contributor to Harper’s Magazine and author of the weblog No Comment for Harper’s website, has been following the prosecution of Don Siegleman and has written extensively on the subject. In his article September 14, 2007 article The Remarkable ‘Recusal’ of Leura Canary, Prof. Horton identified two material misstatements that raise the question of Mrs. Canary’s honesty regarding her recusal from the case:

I question the honesty of Leura Canary’s statement. First, it makes the claim–continuously repeated–that Mrs. Canary took this step on her own initiative. In fact she took it because of the request that attorney Johnson filed with the Justice Department, which launched an independent look at the matter.

Second, Mrs. Canary says that the Justice Department told her that she was okay from a conflicts perspective. I put the question to two prominent legal ethicists: would the facts I presented require Mrs. Canary’s recusal from the investigation of Governor Siegelman? Answer: “this is not a borderline or close case. Under the facts you outline, Mrs. Canary violated the canons of ethics by undertaking and handling the investigation of Governor Siegelman for the period up to her recusal.” Do you believe that a Department of Justice Office of Professional Responsibility officer would have advised Mrs. Canary that there was “no actual conflict.” Answer: “The standard that applies is whether there would be an ‘appearance of impartiality,’ not ‘actual conflict,’ so the Canary statement misstates the rule. Nonetheless, here the situation passes far beyond ‘appearance of impartiality’ and reaches an actual conflict. The advice she suggests could not have been competently rendered. It would be very interesting to know who at Justice gave such advice.” …

As far back as September 2007 when he published his article, Prof. Horton questioned whether Mrs. Canary had recused herself in fact and not just in word, noting that Mrs. Canary’s statement that she recused herself is only the beginning of the discussion:

And third, the press statement says she recused herself. But did she?

The question then became follow-through. Career senior Justice Department officials tell me that when a U.S. Attorney recuses him- or herself, there is a standard procedure followed: a conflict of interest certification is prepared and submitted in the matter; a certificate of divestiture is prepared and submitted; “502 determinations” are prepared; there is also other ordinary documentation such as a formal appointment of an acting U.S. attorney to handle the matter, transmittal documentation and the like. The normal process, as I am told, is that a neighboring U.S. Attorney is appointed to handle the matter, usually with support of career professionals who would otherwise report to the recused U.S. Attorney.

I can find no evidence that any of these standard procedures were followed. Instead, according to public statements, a member of Mrs. Canary’s staff was appointed to handle the matter. In fact the person she designated was her principal prosecutor; that is, someone whose career and advancement was dependent directly upon her evaluations, not those of an intermediate staffer. When I reviewed this with a career senior Justice Department official I was told: “That’s very odd, and it violates the basic recusal rules. If the recused U.S. Attorney has appointed one of her staffers, without the supervision of another U.S. Attorney, then she has not really recused herself at all. The staffer operates in her office, under her apparent supervision, subject to her performance evaluations, and receiving her paychecks. The idea that the U.S. Attorney is recused and that the staffer is running the show would be a difficult sale to anyone with eyes and possessed of a brain.” Precisely. The ploy only works when the local media report it and don’t ask any questions or use their analytical faculties.

And, as Rep. John Conyers, Chairman of the House Committee on the Judiciary, and Rep. Linda Sanchez, Chair of the Subcommittee on Commercial and Administrative Law, explain in their November 7, 2008 letter to Attorney General Michael Mukasey, documents – obtained by both Prof. Horton and Adam Zagorin – have surfaced that establish that Mrs. Canary did not, as a matter of fact, recuse herself from the prosecution of Gov. Siegelman:

Ms. [Tamarah] Grimes[, an employee of the United States Attorney for the Middle District of Alabama,] has provided several emails[*] casting serious doubts on these assertions, however. The most significant of these emails is a September 19, 2005, email from Ms. Canary to Acting United States Attorney Franklin, Assistant United States Attorneys Feaga and Perrine, First Assistant United States Attorney Patricia Watson (whose last name was Snyder at this time), and criminal legal assistant Debbie Shaw. This email was sent at a critical time in the Siegelman/Scrushy case – Mr. Siegelman had been indicted, although that fact had not been revealed to his attorneys, and the Government was preparing a superceding indictment that would be publicly revealed the following month.

In this email, Ms. Canary forwards an article regarding the Siegelman case and writes: "Ya’ll need to read because he refers to a ‘survey’ which allegedly shows that 67% of Alabamians believe the investigation of him to be politically motivated. (Perhaps grounds not to let him discuss court activities in the media?) He also admits to making ‘bad hires’ in his last administration." [Footnote] 18

This email raises obvious questions about the degree to which Ms. Canary honored her recusal from this case. A recused United States Attorney should not be providing factual information such as relevant news clipping containing a defendant’s statements to the team working on the case under recusal. And this email does not just show Ms. Canary forwarding and article – it reflects her analyzing the article and highlighting certain facts. And most troubling of all it contains a litigation strategy recommendation – that the prosecution should seek to bar Mr. Siegelman from speaking to the media. We note too that it was sent only to members of the Siegelman/Scrushy prosecution team – it was not an office wide email that inadvertently reached people working on the case.

[Footnote] 18 September 19, 2005, email from Leura Canary to JB Perrine, Steve Feaga, Louis Franklin, Debbie Shaw and Patricia Snyder.

[*The images of the e-mails can be found here.]

Regarding Mrs. Canary’s advice that the prosecution seek a gag order against Gov. Siegelman, Adam Zagorin reported on November 14, 2007 at Time.com that the prosecution team did just that:

Prosecutors in the case seem to have followed Canary’s advice. A few months later they petitioned the court to prevent Siegelman from arguing that politics had any bearing on the case against him. After trial, they persuaded the judge to use Siegelman’s public statements about political bias — like the one Canary had flagged in her e-mail — as grounds for increasing his prison sentence. The judge’s action is now one target of next month’s appeal.

Writing at the Daily Beast, Prof. Horton characterized Mrs. Canary’s conduct in this manner:

Canary, attaching a Siegelman campaign missive to one email, noted that Siegelman claimed that the prosecution is politically motivated and that 67 percent of Alabamans agree with him. Canary suggested that her subordinates obtain a gag order against Siegelman to bar him from making any references to the political nature of the charges brought against him. The communication suggested that Canary’s motivation is, just as Siegelman alleges, political in nature. More significantly, it demonstrates that Canary continued to drive the case notwithstanding her “recusal.”

In fact, the prosecutors sought a gag order against Siegelman and persuaded the judge, a former member of the Executive Committee of the Alabama G.O.P., to ratchet Siegelman’s sentence upwards because he claimed he was a victim of a political prosecution led by Republicans. (Recent polling suggests that Alabamans believe by overwhelming margins that Siegelman was a victim of a political prosecution, and newspaper editorial boards across the state called for his release.)

In another email, Canary’s first assistant referred to Canary making staffing decisions surrounding the prosecution of the Siegelman case long after her “recusal.” These allegations are backed up by the fact that Canary repeatedly appeared at news conferences concerning the Siegelman prosecution and granted at least three press interviews to discuss it—all after she said she had removed herself from the case.

Not surprisingly, Mrs. Canary has denied any wrongdoing both personally and through her subordinates. In reviewing Mrs. Canary’s conduct, neither her nor Mr. Franklin’s statements that Mrs. Canary recused herself need not – and indeed must not – be accepted at face value. To the contrary, her denials of improper motives or conduct must be evaluated based on the totality of the circumstances. As provided in the adopted Terminology of the Alabama Rules of Professional Conduct, for Mrs. Canary to believe that her conduct was proper, she must have “actually supposed the fact in question to be true” (which belief “may be inferred from circumstances”) and for that belief to be reasonable requires “that the circumstances are such that the belief is reasonable.”

For example, in her May 16, 2002 press release, Mrs. Canary admitted that "it would not be appropriate for me to discuss any investigations that may or may not be under review in my office." However, as Prof. Horton notes in his article The Remarkable ‘Recusal’ of Leura Canary, Mrs. Canary made this statement to the Los Angeles Times:

Leura Canary said that suggesting she exerted political influence over the case was “a ridiculous assertion” because it was handled by a career prosecutor, Franklin, in conjunction with the public integrity section of the Justice Department in Washington.

As noted above, Prof. Horton has already reported on several interactions between Mrs. Canary and the press regarding the prosecution of Gov. Siegelman after her alleged recusal:

When charges were announced against Siegelman at a press conference convened in Montgomery, Noel Hillman traveled down to Montgomery to deliver the message (stating, ironically as it turns out, “Public Integrity does not do politics”), and there with him stood Leura Canary. Similarly, as the case proceeded, Leura Canary did not keep any distance from it. She gave interviews to the Los Angeles Times and to the Montgomery Advertiser about the case. Not the conduct of a ‘recused’ U.S. Attorney. [As of November, 17, 2008, linking to the Montgomery Advertiser from the link in Prof. Horton's article returns a page that states that 'The article requested can not be found!']

Mrs. Canary’s denials were also echoed by Louis V. Franklin, Sr., Acting U.S. Attorney in the Siegelman/Scrushy Prosecution.

In light of the evidence presented by Ms. Grimes and the contradictions between her actions and her contradictory, self-serving statements, Mrs. Canary’s denials are simply not believable. In short, “a lawyer of reasonable prudence and competence would ascertain the matter in question” to be improper, and, therefore, Mrs. Canary should have known that her conduct was improper even if she actually (and, in that case, quite incompetently) did not know her conduct was improper.

If the reputations of the Department of Justice and the Alabama State Bar are ever to be salvaged, Mrs. Canary must be investigated by the Alabama State Bar Office of Legal Counsel and referred to the Alabama State Bar Disciplinary Committee to answer for her violations of the Alabama Rules of Professional Conduct. Although the Alabama State Bar Office of Legal Counsel has the authority to begin an investigation on its own volition, a state bar system will not normally begin a formal investigation until it receives a formal complaint. A formal grievance complaint can’t be filed online, but anyone – whether a resident of Alabama or not or otherwise involved in this matter – can easily file a grievance against Mrs. Canary with the Alabama State Bar in just three simple steps:

1. Print, complete and sign the official Alabama Complaint Against a Lawyer;
2. Print and attach this page to the Complaint Form as the factual basis for the claim; and
3. Mail the complaint to the address noted on the Complaint Form.

h/ts to Legal Schnauzer, WriteChic Press, at-Largely and capt.