Tamm Negotiated Discipline Imposed

The ethics saga of DOJ whistleblower Thomas Tamm ended after more than a decade with the adoption of a negotiated public censure by the District of Columbia Court of Appeals.

Based upon respondent’s recognition that during the course of his employment as a lawyer for the United States Department of Justice Office of Intelligence Policy and Review he provided a reporter with information that constituted “confidences” or “secrets,” he admittedly violated Rule 1.6 of the District of Columbia Rules of Professional Conduct. The Committee considered the following circumstances in mitigation: (1) respondent cooperated with Disciplinary Counsel; (2) respondent’s sole intent was to further government compliance with the law; (3) respondent made limited disclosure of the information; (4) respondent did not receive any financial compensation from disclosure of the information; and (4) the investigation of this matter had been stressful and expensive. As a result, Disciplinary Counsel and respondent negotiated the imposition of discipline in the form of a public censure. The Committee reviewed the amended petition and supporting affidavit and concluded, after the limited hearing on the revised petition, that the revised petition for negotiated discipline should be approved.

We accept the Committee’s recommendation because it properly applied D.C. Bar R. XI § 12.1 (c) to arrive at this conclusion, and we find no error in the Committee’s determination. Based upon the record before the court, the negotiated discipline of a public censure is not unduly lenient considering the existence of mitigating factors and the discipline imposed by this court for a typical Rule 1.6 violation without any aggravating factors

 The disclosures at issue here took place in 2005. Disciplinary Counsel had the matter under investigation since 2009.

 The negotiated discipline was accepted by a panel consisting of Associate Judges Thompson and Beckwith and Senior Judge Farrell.

There is a view – with which I fully agree – that Thomas Tamm is a national hero. From his Ridenhour Award citation

Thomas Tamm worked at a Justice Department that, in the name of national security, had abandoned the core principles that form the basis of our democracy and our individual liberties. The fact that he still faces a threat of criminal prosecution at the hands of an institution which itself was operating outside of the law, is in and of itself a national disgrace. What makes Tamm’s case even more poignant is that there remains not a single authorized avenue for a national security whistleblower to use and receive protection when they challenge the Executive Branch for breaking the law. Today, we honor a person who has imperiled his own future liberty to preserve the liberties of all of us who live in this nation.

I was honored to be a part of the defense team in this matter led by Paul Kemp and Cary Feldman. (Mike Frisch)