Ethics

I?m going to speak at an APRL conference on the proper nature and scope of CYA letters, and want to take it out of the context of the OLC lawyers and the emotion-charged context of the torture memos.  Towards that end, the following is one of several situations in which I have given such letters.  I?d appreciate others? views on whether such letters should ever be sent and, if so, under what restrictions.

In 1971, the Nixon administration arrested 13,000 people, virtually all of whom had come to DC to peacefully protest the Vietnam War.  I was in charge of ACLU?s litigation effort on their behalf.

One group of clients consisted of 2400 people who had been arrested for disorderly conduct, but with no probably cause and with no record made by the arresting officers of the circumstances of the arrests.  (In fact, one of the group was a White House secretary who had been arrested while walking to work.)  The arrestees were required to post collateral and given court dates for trials.  Many did not appear because they had come from distant places.  In those cases, the government moved the court to forfeit their collateral and enter a conviction.  Whenever a defendant did appear, however, he or she was met at the courtroom door by a prosecutor who gave the defendant a green card indicating that the case had been dismissed and informing them how to get their collateral refunded.

In a class action on behalf of the 2400 arrestees, I got a ruling from the U.S. Court of Appeals for the D.C. Circuit enjoining the government from further prosecutions and expunging the arrest records.

Thereafter, with reference to the MayDay ?arrests,? some members of the class asked me whether they had to answer yes if asked on job, graduate school, or bar applications whether they had ever been arrested.  I told them that, in my opinion, they could properly answer no.  (For those too young to recall, there were people who would be strongly hostile to anti-war demonstrators, peaceable or not; think Swift Boat attacks on John Kerry.)  However, I cautioned them that a letter to that effect from me would not be an immunity bath, although it would at least provide evidence of their good faith if they were ever challenged on the issue.  I also pointed out that a lie on an application might well be considered a more serious matter than the fact of an arrest, and that someone else might disagree with me regarding whether they had lied.  In those cases in which people requested the letter (all such cases, as I recall), I wrote it for them.  However, I did not include my cautions in the letters.  I simply stated the facts and my opinion.

Was there anything improper in such letters in those circumstances?