Ethics

Pdf here.  (nod to Concurring Opinions)

UPDATE:  Having read the piece, I find it to be an interesting but flawed thought experiment.  The thesis is that we adapt the corporate lawyer's gatekeeping function to the world of Executive Branch (EB) lawyers and conceive of the EB lawyer as having primary, secondary, and tertiary clients -- a kind of tripartite client depending on the facts of the situation.  The first client is the president; the secondary client is the presidency; the third client is the public (whose agent is the Congress).  To make this scheme work, the Attorney General would be required to report to Congress the substance of opinions that the AG has rendered to the President, and individaul EB lawyers would have discretion to "report out" to Congress in extreme cases.

What I like about the proposal is that it emphasizes (i) the need to define the client and (ii) the need to "report up" when the organizational client is going astray.  But for anyone who's actually handled legal ethics matters, the idea of tripartite clients cries out for a more thorough explanation than the Note provides.   Moreover, it treats the President as subordinate to Congress when it requires "reporting out" to Congress.  We shouldn't create professional duties that would conflict with the balance of powers.

It seems to me that we are still moving down the learning curve on how to define the professional duties of lawyers in the federal government.  My intuition suggests that (i) we shouldn't adopt multi-client models but rather use the pre-exising model of the organizational client that has fiduciary duties to other persons and that is bound to follow the law; and (ii) we will need to look more closely at the particular roles of the various government lawyers.   That is, we'll need to ask about how the work of each EB lawyer plugs into larger social systems, how it relates to the balance of powers, and how it relates to the traditional sub-roles of advocate, negotiator, evaluator, and counselor.  I'd expect that this process of sorting out the ethical duties will be slow and event-driven, and that over time we'll recognize quite different duties for the various EB lawyers.  (And notice that we haven't yet discussed lawyers employed by Congress or the judiciary.)