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Ethics

: Legal Ethics Forum

Three Reasons to Favor Inquiry Into the OLC Memoranda

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1.  Fairness to the lawyers involved.  Some but not all work product has been released and the actions of the relevant lawyers have been debated, with much critical discussion.  It would be fair to free them from constraints of privilege and confidentiality and provide them a forum to set forth fully their view of their actions. That does not require a formal inquiry, but I think such an inquiry would be the most trusted and thus best forum.  

2. Lessons for future practice.  Critics of the memoranda have raised points sufficient to believe that a fuller understanding of how these memoranda came to be written and what effects they had would be useful to future government lawyers, to students of legal practice, and to our students.  One need not accept any particular substantive criticism to agree with this point. 


3. Democratic self-governance.  The moral and legal issues the memoranda address are sufficiently important that it is reasonable to believe a full inquiry into them will improve our understanding of the choices the government has made in the past and thus our ability to choose well in the future.


Two objections to inquiry come to mind.  One is that the prospect of such inquiry might chill the candor of advice in the future.  Client representatives always retain the power to waive confidentiality, however, as many lawyers for entities have discovered when new management cooperates with an investigation.  And so much of this work has been disclosed at this point that I doubt an inquiry would produce much in the way of incremental chill.


Another objection is that it is time to move beyond the debates such inquiry would fuel.  This is a strong point, but it seems likely that lessons will be drawn from this experience with or without inquiry, so that it is unrealistic to expect a truly fresh start.  It would be better that the lessons drawn be based on a fuller understanding of what happened than, I think, we have now.


DM

Full post as published by Legal Ethics Forum on April 30, 2009 (boomark / email).

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