Thomas Tamm just can’t catch a break.
Tamm, a former Justice Department lawyer, was troubled by the Bush Administration’s decision after 9/11 to monitor the phone calls and emails of Americans without obtaining a warrant. When his concerns were brushed off by the higher-ups at Justice, he exposed the warrantless domestic wiretapping program to The New York Times in 2004. Tamm’s brave act of whistleblowing cost him his job. He was hounded by the FBI until the government decided in 2011 to not prosecute him. Legal fees drove him into debt.
This week, we learned that Tamm’s troubles are far from over. In 2009, the District of Columbia Bar opened an ethics case into his conduct, but it only just recently initiated disciplinary proceedings against him. He is charged with violating his ethical duties as a lawyer by failing to report the wrongdoing to his superiors at Justice and by revealing the secrets of his client (the Justice Department) to the Times.
If the charges are substantiated, Tamm could be disbarred in DC. His license to practice law in Maryland, where he currently works as a public defender, would also be in jeopardy. This is another legal battle that could drag on for years.
The Project On Government Oversight has long supported Tamm. And in 2009, he was awarded the Ridenhour Prize for Truth-telling. The latest twist in his legal saga concerns us for at least two reasons. First, the charge that Tamm failed to report through proper channels seems rather weak in light of what is already known about his case. Tamm has long said that he did notify his supervisors about the suspicious surveillance program. He said they told him that it was “probably illegal” and pressured him to keep quiet.
Second, the DC Bar is setting a terrible precedent for its members who work for the federal government. The decision to bring ethics charges against Tamm creates an ethical dilemma for government lawyers who discover high-level misconduct at their agencies. How can a lawyer report illegal conduct to a superior when the superior either authorized or is participating in the conduct? While Tamm’s disclosure was protected under whistleblower laws, the DC Bar claims his legally protected whistleblowing violated ethics rules. If substantiated, this would create an enormous carve out in whistleblower protections, leaving government lawyers with few avenues to disclose wrongdoing.
Update: In March 2016, Thomas Tamm settled the District of Columbia attorney disciplinary matter by agreeing to a public censure [PDF] for revealing the confidences or secrets of a client—the Justice Department—to a New York Times reporter. In effect, this amounts to a public declaration that Tamm's conduct was improper without affecting his right to practice law in the District of Columbia.