Ethics

In a letter to the New York Times today, Richard Painter, my friend and co-author on a law review article, argues that lawyers in the Justice Department who had represented accused terrorists in private life should not work on terrorism matters - apparently at all - at Justice. They "should work on other matters."

Why? Because the "government has stated that most of these people are acting in concert, and that information obtained from interrogating one detainee has led to the apprehension of others." In effect, having worked for one, a lawyer will have worked for all because the terrorists act in concert.

It may be that Richard means only that the lawyers cannot represent the U.S. "in its effort to detain, interrogate, or try"  any alleged terrorists. That would not exclude policy work that is not specific to any investigation, trial, ec. But the last line - "they should work on other matters" - suggests Richard is saying they may not even work on terrorism-related  policies apart from specific matters.

Richard is identified as a law professor at Minnesota and chief White House ethics lawyer 2005-2007, bolstering his credibility on these issues.

I think Richard is wrong in so far as he is saying that because terrorists are all "acting in concert," we should treat all terrorists as if they were one client for conflict purposes, without further inquiry into the relationship in fact between cases.

 And I believe he is certainly wrong in then concluding, as I read him to say, that the Justice Department lawyers may not now have any role whatsoever in terrorism policy or matters at Justice.

If Richard means only that this is what the Department's policy "should be," not what it must be and not what the conflict rules require, then his letter has a very different focus and is much weaker. But I don't read it that way.