Ethics

The always-worth-reading David Luban posts his thoughts about Padilla v. Yoo over at Balinization.  I can't respond right away, but can offer a quick couple of thoughts.

1.  Luban emphasizes Yoo's participation not merely in the role of lawyer within the OLC, but also in the so-called "War Council."  I can't tell if that's an informal role or a formal one recognized by law and OLC policy.  Luban also discusses the nature of the OLC lawyer's role.  That's one issue that's always bothered me.  Many of us have an instinct to view OLC lawyers as advisor/counselors governed by Model Rules 1.2 and 2.1, but part of the OLC function, as I understand it, is to definitively resolve legitimate disputes within the Executive Branch and legally bind all EB personnel and departments except the president.  If so, how do we best understand the proper role of OLC lawyers?  (By way of comparison, lawyers undertaking the advisor/counselor role in private practice have no power to bind their clients; they merely advise.  If the OLC lawyers are required to decide between various legal interpretations, does that requirement buy them any extra immunity?  Would that matter here?)

2.  American legal ethics are driven by seminal events: Watergate, the corporate failures following the bubble burst (Enron, WorldCom, etc.), etc.  The role of lawyers in the "Global War on Terrorism" may well trump them all.  Luban's new book, Legal Ethics and Human Dignity, covers that territory.  (I bought it but alas have not been able to crack it yet.)

3.  Luban acknowledges that Padilla has an uphill battle, but asserts that Padilla's complaint should not be summarily dismissed.  This week's ruling in Rasul may be a foreshadowing of what will happen in Padilla: a long, dense, citation-heavy opinion saying, essentially, that the defendant is immune despite allegations that sound pretty awful. If so, we will still be left with the larger questions about the proper role of lawyers.