Ethics

Thanks to John S. and his incredibly comprehensive list of resources on the newly released documents on the DOJ's internal investigation of the torture memos.  (By the way, I had trouble printing and downloading the documents from the NYT website, but Marcy Wheeler has links to the same documents maintained by the House Judiciary committee -- I recommend her resources page.)  I have only begun to work through the documents, but I wanted to start a post, which I can update as needed, in response to John's excellent post.

Looking briefly through the responses by Yoo and Bybee, and the final version of the report issued by DAG Margolis, it is clear that one of the principal legal ethics issues will be over whether there is sufficient clarity in the rules with respect to lawyers serving as legal advisors.  John says in his recent post and elsewhere that there is not much room to discipline lawyers under 2.1 for giving advice on the basis of sincerely held (i.e. subjective good faith) legal positions.  I haven't looked carefully at the Margolis report yet, but apparently it considers and rejects discipline under Rule 2.1, as well as on the ground that government lawyers generally (or OLC lawyers specifically) have some kind of heightened duty.  John says the problem is that the Model Rules are pretty thin on regulating the lawyer's role as advisor, as contrasted with the lawyer as litigation advocate.

A couple of months ago I debated this issue with John Yoo's lawyer, Miguel Estrada, at the Federalist Society's annual convention.  There I said, for the sake of argument, that I'd be willing to forego any reliance on some notion of a heightened duty for government lawyers.  But I don't think the rules are that thin with respect to lawyers acting in an advisory capacity, unless one is extremely formalistic about the rules.  Yes, it's true that 2.1 doesn't say much except that lawyers must provide candid, independent advice.  But why is it hard to apply that rule to a lawyer who sincerely, but objectively wrongly, believes her advice to be correct?  We apply objective standards in the rules all the time.  Rule 1.1 is an objective standard of competence, and Rule 3.1 is an objective standard of asserting only well founded legal positions.  Then there are other rules, like Rule 5.2 (the one Andy P. thinks is silly) providing a safe harbor for subordinate lawyers provided that their supervisory lawyer's resolution of an arguable question of professional duty is objectively reasonable.)  Like the law of torts, the law governing lawyers is pervaded by objective standards of reasonableness.  Why are we reading 2.1 in isolation from those other rules, and from the general orientation of the rules toward an objective standard?

Let's take an example that's less hot-button than torture.  I was on a panel at the AALS in New Orleans about cyber-harassment of women and the intersection with character and fitness review for prospective lawyers.  My own view is that the law governing character and fitness review is a spectacular mess, and lots of evidence is admitted by these committees (with the blessing of state courts) that is probably not probative of anything relevant to an applicant's future fitness to practice law.  My view is that people who post viciously misogynist, racist, and homophobic comments on AutoAdmit and Above the Law are complete assholes, but should not be excluded from the bar on character and fitness grounds.  However, if I gave that advice to a student, I would be seriously remiss if I didn't observe that the law is actually very different from my own view of how it should be.  There's actually a reasonable likelihood that a character and fitness committee, at least in some states, might deny admission to someone who posted some of these comments (see the Matthew Hale case, for example).  I'd go so far as to say it would be unethical of me to give the advice that the students are legally permitted (in view of the governing law of character and fitness) to post these comments.  What's the basis for this conclusion?  It has to be 1.1/2.1 read together, right?  Remember, I have a sincerely held belief that this law is seriously wrong, but I can't give advice on that basis.

I don't see how this case is any different from the advice given by John Yoo.  He sincerely and in subjective good faith believes the law of executive power in wartime is wrong.  He has historical and political arguments for why the president should have virtually unconstrained power in this area, even with respect to U.S. citizens acting on U.S. territory, as long as the president deems them "enemy combatants."  Maybe these are good historical and normative arguments, maybe they're not, but they're not objectively good faith legal-interpretive arguments.  But suddenly we claim to be unable to call that advice unethical because there's not much in the Model Rules on point.  Huh?  Why don't we interpret the Model Rules, as we do any other source of law, holistically and purposively, taking into account their structure, sense, overall rationality, and the like? 

I would also argue that the Model Rules should also be interpreted, whenever possible, as consistent with the broader law governing lawyers.  Susan Koniak has been observing for a long time that the organized bar has its own vision of ethical conduct for lawyers, and offers it as if it is necessarily the only one.  As she notes, however, the bar often loses to "the state" -- meaning legislatures, administrative agencies, and courts applying common law doctrines.  Building on that observation, we can look at the treatment of liability for legal advising in contexts in which liability is possible in principle.  (It's probably not here, because of immunity doctrines, the running of the statute of limitations, and also because of the lack of any political will to pursue charges against Yoo and Bybee.)  There are many cases in which lawyers have been held liable for providing legal advice that is objectively unreasonable.  One of my favorite teaching cases is FDIC v. O'Melveney & Myers, where the liability was to the client for failing to do what was objectively in the client's best interests, by advising it to do something about its crooked senior management.  If Yoo and Bybee gave similar advice -- i.e. subjectively believed but objectively not well grounded -- to a private client, is there any doubt they would be subject to liability?  If liability would be possible in that context, then they should be deemed to have acted unethically as advisors to the government, if we want the law of lawyering to be consistent across sources of regulation (i.e. liability and discipline).  There may be reasons why we'd want the law govering liability to be different from that governing discipline, but that argument would have to be made separately.

At this point this is a fairly half-baked argument.  My next task is to dive into all of these reports and look carefully at the arguments.  I'll post updates if I have anything useful to say, but in the meantime, we've got John's post and my comment, and hopefully we'll have a lively debate on LEF.