The court should begin its analysis with the gravity of petitioner’s misconduct, which was well

described by petitioner’s own witness, Dr. Paul Paton. Dr. Paton is an esteemed Stanford trained
lawyer and Dean of Law and Wilbur Fee Bowker Professor of Law at the University of Alberta,
Faculty of Law, whose areas of academic specialty include legal ethics, professional
responsibility, and the regulation of lawyers. ​On cross-examination, Dr. Paton was asked the
following questions and gave the following answers, when questioned by supervising attorney
Manuel Jimenez:

Q: At some point you stated that your students were, or some of whom were, personally
offended by the recitation of facts that Mr. Ellerman had given them.

A: They were personally offended by the notion of somebody offending the system of
justice that they believed in.

Q: And as you sit here today, what is your understanding of what Mr. Ellerman did? In your
own words?

A: Mr. Ellerman took the law into his own hands. He lied to the court. He lied directly to the
judge. He violated the system of justice by leaking grand jury testimony. He offended
every sensibility of the responsibility of what it means to be a lawyer and to act honestly,
and in good faith, and to, and – uh – be not only responsible to your client but to serve
as an officer of the court. And, the actions he engaged were not one time and
temporally limited to one episode. It continued over a number of months. And each
action seemed to compound the error of the previous action. And that the steps taken
by the judge when it came to sentencing and not accepting the plea agreement, but sent
– uh – sending it back for additional consideration were an important signal from the
court about what the court thought of his actions as an attorney and as an individual.

Q: Have you ever heard of the axiom that prosecutors are not just advocates, but they’re
also – they’re also supposed to do justice?

A: Something certainly akin to that. That the prosecution has a responsibility not simply
seek to secure a win, but to serve the system of justice and come to the right result.

Q: And in criminal – a – criminal cases – defense attorneys kind of have a unique place in
those – those prosecutions. They are supposed to be zealously advocating, correct?

A: Yes.

Q: I mean somebody gets prosecuted in the United States District Court – the United States
of America versus the defendant, and the only person sitting next to him is his attorney.
He’s representing somebody who’s being prosecuted by the government, correct?
A: One of the axiomatic expressions that does come up is about the role of defense
counsel. The role of the attorney as the gatekeeper for an individual in terms of the
defense of their liberty against the awesome power of the state.

Q: The awesome power of the state?

A: Correct.

Q: With all of its investigators and all of its prosecutors, and all of the resources, correct?
That one person is the gatekeeper for that person to make sure that he gets substantive
and procedural due process in the venue of the district court, or any court that he is
preceding?

A: The prosecution has his or her special responsibilities. The defense counsel in the
system of justice in the United States has incredible responsibility in that respect.

Q: Are you aware as you sit here today that when questions arose as to who was leaking
the grand jury testimony, that Mr. Ellerman blamed his client?

A: I recall him, not blaming his client, but I recall an exchange back and forth where he was
trying to obfuscate – uh – about what was happening with the leaks.

Q: So somebody who was so – uh – angry that those he perceived to be responsible for the
problem of doping, were not being held accountable, when he was called to account he
tried to shift responsibility to somebody else, isn’t that correct?

A: As I understand the factual background, yes.

Q: That offends everybody don’t you think – It offends you, doesn’t it?

A: It offends – I can’t talk about everybody else or my students, but I can relay, as I relayed
earlier today – I relayed my students’ sense of upset and offense at the actions taken.
And certainly, uh, having spent a career trying to explore what it means to be an ethical
lawyer, yes. Uh – absolutely – my – to blame your client for an action you’ve
undertaken, not only is a straight breach of fiduciary duty or responsibility, but offends
the sensibility of the system of justice.