L.A.-based law firm gives more than $3.2 million in services to help appeals judge’s defense

U.S. 9th Circuit Court of Appeals Judge Jay S. Bybee accepted more than $3.2 million in free legal services from a Los Angeles-based firm to fight allegations of ethics violations for providing the Bush administration legal justification to use harsh interrogation tactics that critics called torture, his financial disclosure reports reveal.

In his latest report to the Administrative Office of the U.S. Courts, Bybee reported gifts from the Latham & Watkins firm that bring the total of its free legal assistance to the judge to $3,251,893 since 2007.

Latham & Watkins, the world’s fourth-largest law firm with 2,000 lawyers in 13 countries, has frequent business before the 9th Circuit in a broad spectrum of financial, regulatory, environmental and other litigation. Spokesman Frank Pizzurro confirmed the value of the legal services provided to Bybee over the last four years but declined to discuss details.

Bybee was named to the powerful Western appeals court by President George W. Bush two years after he wrote legal memos condoning waterboarding and other harsh interrogation tactics in his role as head of the Justice Department’s Office of Legal Counsel. Since his legal guidance on “enhanced interrogation” was disclosed three years ago, Bybee has weathered protesters accusing him of war crimes and has defeated calls for prosecution and threatened disciplinary sanctions.

In a series of advisories to the Bush White House on the interrogation of terror suspects, Bybee and fellow administration lawyer John Yoo concluded that painful interrogation techniques could legally be used to induce captured suspects to give up information. The Obama administration has since outlawed waterboarding, a simulated drowning method that Atty. Gen. Eric H. Holder Jr. has said constitutes torture.


Bybee has disqualified himself from most cases in which Latham & Watkins attorneys have represented parties to a dispute since he began accepting their donated legal services four years ago, a review of 9th Circuit records shows. The value of the law firm’s legal assistance to Bybee was first reported by the National Law Journal.

Bybee did not respond to an emailed question about whether and for how long he considers it necessary to withdraw from any cases involving Latham attorneys to avoid any appearance of potential bias.

“This is such a significant benefit to him that I would expect him to err on the side of caution and maybe sit out their cases for the rest of his judicial career,” Arthur Hellman, a University of Pittsburgh law professor, said of the judge’s need to distance himself from any hint of favor toward Latham.

Hellman noted that it wouldn’t be a hardship for the 9th Circuit to assign other of its 43 active and senior judges to hear cases in which Latham represents a party. Even at the level of the U.S. Supreme Court, federal jurists go to extreme lengths to avoid any compromising appearance, he said, pointing to late Justice Thurgood Marshall’s practice of taking himself out of cases in which the NAACP was a party. Marshall was the rights group’s general counsel before he was named to the high court.

Charles Gardner Geyh, an Indiana University law professor and expert on judicial ethics, said the Latham gift accorded Bybee high-quality representation that he might not otherwise have been able to afford.

Bybee, a married 57-year-old father of four, gave his net worth as less than $500,000 during his confirmation hearing before the Senate Judiciary Committee in 2003, and he hasn’t reported significant income or honorariums since then beyond his $184,500 annual salary as a circuit judge.

Over the last four years, Bybee also reported $191,185 in gifts of legal and consulting services from four sources in addition to that provided by Latham. The gifts included more than $45,000 from the Bybee Legal Expense Fund, whose donors are anonymous; $76,000 from the Davis, Polk & Wardwell law firm, in which a close friend of the judge is a partner; $60,000 from the Wolf Group crisis management consultancy; and $9,600 from Geoffrey Hazard, a UC Hastings law professor.