Ethics

I was asked yesterday by Reprieve lawyers for a Declaration regarding their professional responsibilities in another Guantanamo case.  The following is a hurried draft.  Please let me know if you are willing to to sign on (and if you have any editorial suggestions).

Facts

    7.  The following facts have been given to me by Mr. Katznelson.  For the purposes of this Declaration, I assume that they are true.

        (a) In the professional judgment of Mr. Al Hakeemy?s lawyers, they are not able to provide Mr. Al Hakeemy with constitutionally-required effective assistance of counsel or with ethically competent representation, because Mr. Al Hakeemy is not able to participate in the preparation that is necessary to address the merits of his habeas corpus petition;

        (b) Reprieve lawyers have met repeatedly with Mr. Al Hakeemy since August 2006.  However, they did not received the Government's official allegations and evidence against Mr. Al Hakeemy until October of 2008.  Accordingly, Mr. Al Hakeemy?s lawyers were not able to consult with him with regard to his representation until October of 2008.

        (c)  When Reprieve lawyers have gone to Guantánamo to consult with Mr. Al Hakeemy between November of 2008 and March of 2009, he has been unable to participate adequately in his defense.  He could not concentrate, and he could not focus on specific questions.  Instead, he tended to rant about his treatment.

        (d)  This mental deterioration has been occurring for some time, but has accelerated over the past nine months or so.  Moreover, it has been exacerbated by the attorneys? efforts to review the allegations, which has caused Mr. Al Hakeemy to revisit traumatic, abusive experiences.  Accordingly, the stress from these discussions ? or, indeed, from attempts even to broach the subject of his defense, no matter how gently ? has only made the situation worse.

        (e  ) The Reprieve lawyers have a long-standing relationship with Mr. Al Hakeemy.  In their professional observation and  judgment, he trusts them, and is able to cooperate with them, as much as he would with any lawyer who might visit him in Guantánamo.  Accordingly, the lawyers have concluded that no other lawyer would be able to provide an adequate defense at this time.

        (f)  The Reprieve lawyers have requested that the Court order an independent medical evaluation.  In response, the Government has contended that Mr. Al Hakeemy is competent, thereby putting a material fact in dispute regarding his competence to proceed to a hearing.  At the same time, the Government has opposed the request to resolve the factual dispute through an independent medical expert.

        (g)  The Court has thus far denied the motion for a medical expert, and has scheduled a hearing for Tuesday, May 12, 2009.

Opinion

    8.  The first rule of professional responsibility is that a lawyer ?shall provide competent representation to a client.?  ABA Model Rules of Professional Conduct, Rule 1.1.  Competent representation ?requires the legal knowledge, skill, thoroughness and preparation necessary for the representation.?  Ibid.  In addition, a fundamental premise of the law governing lawyers is that each lawyer must maintain and exercise ?professional independence of judgment.?  Id., MR 5.4, (?Professional Independence of a Lawyer?), cmt. [1]

    9.    In evaluating effective assistance of counsel under the Sixth Amendment to the Constitution, the Supreme Court has held that a court must indulge a ?strong presumption? that counsel's trial judgments are within ?the wide range of reasonable professional assistance? that the Sixth Amendment requires.  Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 993 (1986), quoting Strickland v. Washington, 104 S.Ct. 2052, 2064 (1984).

    10.  The judgment of Mr. Al Hakeemy?s lawyers ? that they cannot competently prepare to represent Mr. Al Hakeemy in his current mental condition ? falls well within the wide range of reasonable professional judgment that they are bound to exercise on behalf of their client and as officers of the court.  Their judgment is therefore entitled to a strong presumption of validity.

    11.  That presumption of validity can, of course, be put into issue by opposing counsel.  However, it cannot be rebutted simply by an adversary?s denial without the support of an independent medical examination.  A contrary result would be inconsistent with the maintenance of the lawyer?s independent professional judgment, as required both by ethical rules and by the Supreme Court?s interpretation of the demands of effective assistance of counsel under the Sixth Amendment to the Constitution.