The District of Columbia Court of Appeals quietly granted a rare waiver this spring to allow D. Kyle Sampson to continue practicing law, despite an ongoing criminal investigation into politicized hiring and firing decisions at the U.S. Department of Justice while Sampson was chief of staff to the attorney general.
Sampson, who left the department in March 2007, was a key figure in scandals that spurred numerous congressional, internal and criminal probes and that ultimately led to the resignation of several top officials, including his boss, Attorney General Alberto Gonzales. Sampson, who has a Utah law license, joined Hunton & Williams as a partner in the firm’s Washington office in October 2007 and applied for membership to the D.C. Bar.
But after the Justice Department’s internal watchdogs concluded that Sampson violated federal law and misled Congress and the White House, the D.C. Committee on Admissions refused to approve his bar application, according to court filings. The committee described a “cloud” over Sampson’s “moral character,” and the delay forced Sampson to take a leave of absence from the firm because rules limit how long a lawyer from another jurisdiction can practice in the District of Columbia.
Turning to the appeals court, Sampson and his supporters waged an all-out campaign to portray him as a hero of the Justice Department scandals. Lawyers from Sidley Austin lobbied admissions officials in an off-the-record hearing, while Sampson offered up federal judges and a U.S. attorney to vouch for his character. Court filings highlight his testimony to Congress and his cooperation with investigators.
“It is clear that Mr. Sampson has extended himself far beyond what is normally expected of a person caught up in a high-profile Washington political controversy to bring the full truth as he knows it to public light,” wrote George Jones Jr., a Sidley Austin partner and former D.C. Bar president, in a Jan. 7 letter to the Committee on Admissions. Jones pleaded with the committee that “the courage and integrity it took to choose that path should be rewarded.”
Sampson’s lawyers also gave what appears to be the first public defense of his work at the Justice Department since the department’s internal watchdogs issued two stinging reports in 2008. In 65 pages of documents, they attempt to pick apart criticism of Sampson’s role in the firings of nine U.S. attorneys in 2006 and in the politicized selection of immigration judges. Any mistakes Sampson made, they wrote, were honest ones.
On May 26, with no explanation, a three-judge panel said Sampson could continue practicing in Washington until a final decision was made on his bar application.
Lawyers who specialize in bar admission say it’s rare for a lawyer not barred in D.C. to get an exception to practice there for more than the 360 days allowed under court rules. And, making the situation perhaps unprecedented, the panel granted Sampson the waiver over the vehement objections of the Committee on Admissions.
“To allow that would risk undermining the public’s confidence in the integrity of the D.C. Bar and the Court’s bar admissions standards,” wrote Alan Kent, counsel to the Committee on Admissions, in court papers filed before the decision.
Despite the Justice Department scandals, Sampson was nearly sworn in to the D.C. Bar in summer 2008. He applied for admission after joining Hunton & Williams’ food and drug regulatory practice, where he worked under the supervision of partners Sheldon Bradshaw and Gary Messplay. In July 2008, he got word he had been certified for bar admission.
But, two weeks before Sampson was to take the oath, the Justice Department’s two watchdogs — the Office of the Inspector General and the Office of Professional Responsibility — issued what became known as the Goodling Report. It accused Sampson, then-White House Liaison Monica Goodling and other top officials of politicizing immigration judgeships, which are governed by civil service laws. The Committee on Admissions changed its mind about Sampson’s application, revoking its certification while it reconsidered whether he met its “character and fitness” requirement.
Sampson got more bad news in the fall. The two watchdogs issued another report about the U.S. attorneys firings, and then-Attorney General Michael Mukasey appointed a special prosecutor to investigate whether any crimes occurred. In October, Sampson took a leave of absence from Hunton because he had reached the maximum 360 days he could practice.
As part of his effort to win over admissions officials, Sampson submitted a list of 12 references. The all-star Republican list included former Attorney General John Ashcroft, for whom Sampson also worked; then-Chief Judge Karen Williams of the 4th U.S. Circuit Court of Appeals, for whom Sampson clerked; then-U.S. Attorney Jeffrey Taylor of the District of Columbia; and Daniel Bryant, a former Justice Department official now a senior executive at PepsiCo.
Sampson’s lawyers even tried a personal approach, writing that denying him even a temporary license to practice would force Sampson to sell his house in a depressed market and return with his wife and three kids to Utah, where he has not lived in a decade. “His professional life is here, his children’s schools and friends are here, and it is here that the Sampson family wishes to reside for the long term,” they wrote.
The committee wouldn’t budge.
BATTLING THE COMMITTEE
Sampson, with a legal team of unusual size for a bar matter, took the committee’s decision to the D.C. Court of Appeals. Four lawyers from Sidley Austin participated, led by Jones and partner Bradford Berenson, a former associate counsel in the Bush White House. Sidley associates Judith Gallagher and David Petron helped.
The dispute quickly got ugly. In a filing, Sampson’s lawyers referred to a Jan. 21 conference they had with the committee. Admissions officials replied angrily, writing that the conference was “a courtesy” designed to be “confidential and off-the-record.”
Sampson’s lawyers argued that the criminal investigation could take years and noted that Sampson has not been named as a target. He had been effectively disbarred, they wrote, a punishment “vastly disproportionate to any errors of law, management, or political judgment Mr. Sampson might have made during his public service.”
The Committee on Admissions fired back that D.C. rules put the burden on a bar applicant to show, by “clear and convincing evidence,” that he has the character and fitness for admission. The Justice Department reports, wrote Chairman Mark Carlin, a partner at Ain & Bank, put an “obvious ‘cloud’ over Sampson’s moral character.”
Sampson’s lawyers, in a reply, accused the committee of failing to carry out its duty by leaving the investigation of Sampson’s conduct to someone else, special prosecutor Nora Dannehy, and by relying on unproven allegations. “Such metaphorical ‘clouds,’ however, are neither evidence nor findings of bad character or professional misconduct,” they wrote.
Complicating the case was a March letter from the Utah State Bar responding to a complaint against Sampson. The bar there dismissed the complaint without disciplinary action, while cautioning that it was not a “complete vindication” of Sampson’s conduct because the bar “is not the appropriate forum for resolving the merits of the federal investigations.”
Sampson’s lawyers did not return calls requesting comment on his waiver. Members of the Committee on Admissions declined to comment. A spokeswoman for Hunton & Williams also declined to comment.
The D.C. Court of Appeals panel that decided in Sampson’s favor included the court’s two newest members, Judges Kathryn Oberly and Phyllis Thompson, and one of its most experienced, Senior Judge Frank Nebeker.
Lawyers who specialize in representing D.C. Bar applicants say that waivers of the 360-day-limit are extremely hard to come by. “They are as rare as hens’ teeth,” said Mark Foster, a partner at Zuckerman Spaeder. Foster said he has obtained exactly one extension — for a high-profile client he declined to name — but, in that case, court officials didn’t object.
David Rosenfeld, a solo practitioner in Alexandria, Va., said the Committee on Admissions sometimes allows for minor extensions. But he said he had never heard of the D.C. Court of Appeals granting an indefinite waiver over the committee’s objections. Sampson’s lawyers, he added with admiration, have accomplished “a great piece of creative work.”
David Ingram is a reporter for The National Law Journal , a Legal affiliate based in New York. •