Professional ethics

by Henry on July 27, 2005

Marty Lederman has an extraordinary post at Balkinization detailing six memos from Judge Advocate Generals in the armed forces that have just been declassified. The memos make it quite clear that the decision to provide a legal opinion that whitewashed “extreme interrogation techniques” encountered considerable resistance from the armed forces legal services, who saw it as overturning longstanding US armed forces policies which committed the US to take the “high road.” The armed services’ opinions were sidelined, in favour of John Yoo’s memo, which seems to have closed the debate and cleared the way for the later abuses which did indeed take place.

There’s a strong case to be made that what happened at Guantanamo and Abu Ghraib, along with other abuses (the outsourcing of torture through “extraordinary rendition” and other legal dodges; the probable use of even more extreme techniques by the CIA) are war crimes. Under current political circumstances, there is no likelihood that they will be prosecuted as such. But one could also argue that administration lawyers who provided dubious legal opinions that were then predictably used to provide a spurious patina of legitimacy to illegal acts, were engaged in unethical activity. There was a kerfuffle a few months ago about lawyers who provided legal opinions that gave cover to dodgy tax-avoidance schemes; giving legal cover to torture seems in principle to be rather more problematic. Here’s my question (and I don’t know the answer to it). Does this kind of activity constitute the kind of ethical malpractice that can and should be sanctioned by relevant professional associations (i.e. bar associations)? My guess is that there’s a grey area here, but I would be interested to hear from those who have direct knowledge of how disciplinary sanctioning works in the law.

Update: A reader reminds me that Scott Horton of Columbia University Law School has argued that the relevant disciplinary authorities should investigate the authors of these memos.

In a June 8, 2004 article (scroll down), Neil A. Lewis and Eric Schmitt of the New York Times reported that,

Scott Horton, the former head of the human rights committee of the Association of the Bar of the City of New York, said Monday that he believed that the March memorandum on avoiding responsibility for torture was what caused a delegation of military lawyers to visit him and complain privately about the administration’s confidential legal arguments. That visit, he said, resulted in the association undertaking a study and issuing of a report criticizing the administration. He added that the lawyers who drafted the torture memo in March could face professional sanctions.

My reader, who wishes to remain anonymous, said that he consulted experts on legal ethics last year about the prospects for disciplinary sanctions. While there is mixed opinion on the scope of the relevant rules, and some doubt over whether the disciplinary authorities would take up a case of this kind in practice, there does seem to be at least a reasonable argument that the rules could be interpreted to sanction this kind or behavior.

{ 19 comments }

1

Ginger Yellow 07.27.05 at 2:31 pm

The American Bar Association’s report is available here. It mentions the Yoo memo, and says the following about the torture memos in general:

“Executive Branch memoranda were developed to justify interrogation procedures that are in conflict with long-held interpretations and understandings of the reach of treaties and laws governing treatment of detainees. Whether and to what extent the memoranda were relied upon by U.S. officials may be open to question, but it is clear that those legal interpretations do not represent sound policy, risk undercutting the government’s ability to assert any high moral ground in its “war on terrorism”, and put Americans at risk of being tortured or subjected to cruel, inhuman or degrading treatment by governments and others willing to cite U.S. actions as a pretext for their own misconduct.”

“Through these Recommendations, the American Bar Association expresses its condemnation of any use of torture or other cruel, inhuman or degrading treatment or punishment upon persons within the custody or under the physical control of the United States government (including its contractors) and any approval or condoning of such measures by government lawyers, officials and agents. “

On the other hand, the report is entirely directed at the US government and doesn’t say anything about what the Bar should do.

2

y81 07.27.05 at 7:47 pm

Well, I am a lawyer, but a legal realist sort of one, so my answer will not satisfy Henry’s desire for moralistic cant: there probably is not a bar association in America far enough to the left that it will sanction Yoo or anyone else in the Bush Administration.

3

Henry 07.27.05 at 8:13 pm

So y81, am I to understand that objections to legal opinions that are intended to pave the way for waterboarding etc are “moralistic cant?”

4

y81 07.27.05 at 8:29 pm

Objections to the OLC memo framed as ethical criticisms of its authors are moralistic cant, yes.

5

Henry 07.27.05 at 8:33 pm

Why?

6

John Bragg 07.27.05 at 10:44 pm

My uninformed guess as to why a legal realist would call it moralistic cant is that it reifies the Law, describing a condition of affairs that Should Be rather than anything that is likely to be recognized by the judicial and legislative sources of law. My understanding of legal realism is that law is what the lawmaking bodies say it is, including what the policing bodies will enforce.

If my interpretation of legal realism is correct, then under this interpretation, the Geneva Conventions on treatment of war prisoners have been null and void for quite some time to the legal realist mind, possibly since shortly after the ink dried. I would bet that there are earlier examples with which I am not familiar, but from an America-centric perspective, the question “What happens if a belligerent mistreats POWs” was answered decisively by the 1973 Paris Peace Accords–“Not a gosh darn thing.”

7

Tom Doyle 07.28.05 at 2:24 am

“Well, I am a lawyer, but a legal realist sort of one, so my answer will not satisfy Henry’s desire for moralistic cant: there probably is not a bar association in America far enough to the left that it will sanction Yoo or anyone else in the Bush Administration.”

Would it not depend on the facts and the law?

Didn’t Clinton get disbarred? Certainly a number of lawyers in the Nixon administration were not only disbarred but convicted and jailed.

8

James Wimberley 07.28.05 at 3:23 am

It’s an ad hominem argument, but y81’s kind of extreme legal realism puts you in the company of the Nazis’ legal theorist Carl Schmitt. Are you comfortable with this?

Even a legal realist has to admit that international law is the real thing if courts with access to police are prepared to enforce it. Nazis were hanged at Nuremberg, Rwandan génocidaires are on trial in Tanzania, Pinochet only escaped extradition to a Spanish court on a medical pretext. Torturers are like pirates, an enemy of all civilised countries, and any country can put them on trial. Rumsfeld, Cambone, Sanchez and Gonzalez will find their travel options rather limited in their retirements.
Traditionally, of course, the laws of war are enforced by the military in combat in their own self-interest.

9

Ginger Yellow 07.28.05 at 4:29 am

Regardless of the Geneva Conventions, torture is illegal under US law.

10

Jack 07.28.05 at 6:39 am

y81,

do you mean to claim that the ethical criticism is meaningless because there is no enforceable penalty in the US for the deeds criticised? Or that because there is in practice no penalty for such behaviour, it is wrong to criticise it?

Legal realism doesn’t usually refer to the belief that is means ought.

11

Katherine 07.28.05 at 9:11 am

the OLC memo is appallingly bad as a legal analysis, even leaving aside the moral question. He entirely ignores the most relevant Supreme Court cases and several passages in the Constitution itself that are directly on point. He fails to use the most basic logic in the definition of torture. etc. etc.

What bar is Yoo a member of, anyway? California?

12

Jonathan Edelstein 07.28.05 at 9:20 am

I think that, to some extent, the comments on this thread are talking past the real issue. The question is not whether the legal realists or the authors of the Yoo memo are correct in their legal interpretation or the positions they advocate, but whether the very act of advocacy is itself unethical. These are two very different issues; a legal opinion can be wrong, even disastrously so, and still not subject its author to professional discipline.

The system of legal ethics in the United States is set up to protect vigorous advocacy. In general, a lawyer is entitled to interpret the law in the way most favorable to his client’s position, even if that interpretation is disfavored or considered by some to be morally repugnant. For example, an attorney is free to stand up in court and argue that KKK cross-burning is protected speech, or argue for the execution of a 16-year-old mentally retarded defendant whose lawyer slept through half the trial. It is ethical (which, in terms of professional discipline, is a concept quite divorced from “moral”) for a lawyer to seek loopholes, interpret words or phrases to favor his position, or argue that laws should not apply in certain cases, as long as he has a good faith basis for his argument.

There are two exceptions. One occurs when a lawyer makes a “frivolous” argument – in other words, one that is totally without basis in fact or law and cannot be supported by any good-faith argument however strained. The second is when a lawyer makes an argument he knows to be false, for purposes of perpetrating a crime or fraud (either on his own behalf or in conspiracy with his client). This is the exception that some of the tax lawyers ran afoul of – advocacy is not considered ethical when it is a tool used to perpetrate an act known in advance to be illegal.

All this means that if the authors of the Yoo memo conspired with the administration to justify acts they knew to be criminal, they can potentially be disciplined, but not if they simply argued in good faith that the law of torture has gray areas and that the administration’s policies were permissible. This poses obviois problems of proof for any state bar that might set out to discipline them, not to mention that it would essentially require the disciplinary board to find that the administration conspired to commit war crimes. For a combination of legal and political reasons, I can’t quite see this happening.

13

y81 07.28.05 at 10:44 am

John Bragg says what I would have said, had I not returned to billable work for a while. I would add, in response to some of the comments above, that I wouldn’t consider the JAG memos that Lederman reprints to be moralistic cant, or to be nullities from a legal realist point of view. It is indeed quite possible that some sovereign body at some time might try an American for mistreating al Quaeda detainees. But no U.S. bar association is going to sanction any lawyer on this account. It’s not a serious question, just an occasion for moral posturing.

14

Tom Doyle 07.28.05 at 11:04 am

Wendel, W. Bradley, “Legal Ethics and the Separation of Law and Morals” (March 16, 2005). Cornell Legal Studies Research Paper No. 05-011.

Full Text (pdf)

Abstract:
This paper explores the jurisprudential question of the relationship between moral values and legal norms in legal advising and counseling in the context of an analysis of the so-called torture memos prepared by lawyers in the Office of Legal Counsel in 2002. The principal claim of the paper is that the torture memos are morally bankrupt because they are legally bankrupt. The lawyers’ actions were wrong from a moral point of view because the lawyers failed with respect to their obligation to treat the law with respect, not simply as an inconvenient obstacle to be planned around. The morality of torture plays no direct role in this analysis. Although it is easy to say at a high level of generality that torture is immoral, it is possible for reasonable people to disagree in good faith over application questions, such as whether a particular interrogation technique should be deemed torture, or whether there may be some moral justification for torture in a particular case. In order for citizens and law enforcement officials to cooperate in the project of defending national security while also respecting human rights, it is necessary to reach some provisional settlement of these normative debates. Because the law enables social action in the face of disagreement, it is entitled to respect by affected individuals and also lawyers acting in a representative capacity.

The position defended in this paper contrasts with two widely accepted views. The first, which I call the standard lawyers’ defense of the torture memos, maintains that moral values are excluded from legal reasoning. This position rests on a misunderstanding of legal positivism or, in its more sophisticated versions, on an argument for the exclusive or hard strand of positivism. The more plausible version of inclusive positivism permits moral values to become incorporated into conventional practices of legal reasoning. The second view, which is more common within the academic legal ethics literature than among practicing lawyers, holds that the role of lawyer is directly moralized, in the sense that a lawyer acting in a professional capacity is bound by the same moral principles as an ordinary moral agent would be in the same situation. In order to defend this position, it is necessary to briefly set out the argument for the authority of law that I have defended at length elsewhere. This paper further fleshes out that argument by providing a hypothetical narrative suggesting how law derives its authority from its capacity to enable coordinated social activity in the face of persistent moral disagreement, specifically regarding the morality of torture.

15

Gary Young 07.28.05 at 11:27 am

With respect to Jonathan Edelstein’s comments, I think he may have lost sight of the fact that lawyers are not always advocates. Certainly when giving a public defense of one’s client, one is expected to put the best face possible on what the client has done (consistent with not facilitating a fraud and so forth).

But when consulting with one’s client before any action has been taken, one is expected to render competent advice reflecting a fair statement of the law, not to tell one’s client what he wants to hear.

I believe in this case, questions have been raised about whether the authors of the memos gave competent advice — see, for instance, Katherine’s post on how “appalling bad” the legal advice was.

I suppose one could also ask whether the lawyers in this case were representing their true client — the United States — as opposed to the narrow political interests of particular decisionmakers in the administration. (By way of analogy, doesn’t a corporate lawyer have an obligation to represent a corporation as an entity and not merely to do the bidding of the particular corporate executive hired him?)

16

Tom Doyle 07.28.05 at 11:36 am

I didn’t intend to post all that hypertext. Sorry.

17

Jonathan Edelstein 07.28.05 at 1:43 pm

Tom:

This paper explores the jurisprudential question of the relationship between moral values and legal norms in legal advising and counseling

That’s fine in a philosophical sense, but the term “ethics” as used by disciplinary boards refers to a system of rules and regulations. The doctrine of nulla poena sine lege applies as much to professional discipline as to criminal punishment; if a tribunal is going to penalize a person by taking his freedom or livelihood, it must do so upon proof that the person has violated a defined set of rules. These rules often represent an attempt to codify the prevailing morality, but punishable behavior is measured against the rules themselves, not against the moral precepts on which they may be based.

One can argue, as Professor Wendel does, that “the torture memos are morally bankrupt,” and I agree with that argument. Whether they are unethical in a legal sense, however, has to be measured against the professional responsibility code of the state(s) in which the authors are licensed.

Gary:

Certainly when giving a public defense of one’s client, one is expected to put the best face possible on what the client has done (consistent with not facilitating a fraud and so forth). But when consulting with one’s client before any action has been taken, one is expected to render competent advice reflecting a fair statement of the law, not to tell one’s client what he wants to hear.

There’s also an intermediate situation, in which the client says “I want to do X, can we defend it in a court of law?” At that point, the lawyer’s obligation is either to tell the client “no,” or to say “yes, and here’s how.” The latter course necessarily involves formulating an argument and outlining how the client’s position would be advocated. There’s probably room for debate, but I’d argue that the rules of ethics don’t prohibit an attorney from performing this function as long as his client’s argument is colorable, even if it is weak.

Naturally, a competent attorney would give his client some idea of the strength of the argument and point out possible weaknesses, which John Yoo may or may not have done. I don’t think, though, that Scott Horton was suggesting that the authors of the torture memo be disciplined on competence grounds.

(By way of analogy, doesn’t a corporate lawyer have an obligation to represent a corporation as an entity and not merely to do the bidding of the particular corporate executive hired him?)

Sure, but the lawyer’s representation of that entity still takes place under the supervision of the board – the lawyer doesn’t have carte blanche to determine what the company’s interests are and how to represent them. He has to sue who the board tells him to sue, get board authorization to make contracts, etc. Other rules apply in conflict-of-interest situations, but is a Justice Department deputy assistant even in a position to determine whether the administration’s legal interests in a politically charged situation conflict with those of the US as an entity?

Don’t misunderstand me; I think John Yoo’s opinion was wrong, both in a legal and moral sense. Nevertheless, I don’t think that it was so clearly a violation of the rules of legal ethics as to subject him to disciplinary sanction.

18

RVD 07.28.05 at 2:15 pm

All of this is simply a matter of “whose ox is being gored.” The comment by gary young runs contrary to almost half a century of thought on this subject by the academic and “intellectual” left. When General MacArthur had his differences with Truman he stated, in his defense, that he, like, Truman, had taken an oath to defend the constitution, and that as Truman was only a “temporary” occupant of the office of the President, while he, MacArthur, had been at the defending of the constitution for far longer, it was he, not Truman, who was in the best position to “defend” the Constitution.

Of course the “left” in not only academia but in government, the media and assorted “intellectuals” came down on MacArthur like a ton of bricks. Were every single serving officer to personally interpret what his “oath to defend the Constitution” would entail, would,they argued, bring about anarchy. No, serving officers best defend the constitution by obeying their duly elected–by Constitutional means– President. This interpretation stood until the arrival of a conservative Republican President by the name of Reagan.

During the Iran_Contra hearings a certain Lt.Col North, USMC, defended his actions by testifying that such were done either by the DIRECT orders of the President, his designated representatives in the chain of command or, in those time-sensitive instances where contact with higher HQ was impossible,(remember this was in the days prior to the internet and satallite phones)he acted in ways he believed to be congruent with the President’s core beliefs.
Well, the left went crazy. “Did he not have a HIGHER” duty to the CONSTITUTION of the Framers??!!” Should that not have been his guiding duty, a duty which trumped the orders of a single individual, a “mere” politician? Reading the newspapers of the day one sees how the left conveniently tacked over to MacArthurs side of the argument when it suited them. And then came Slick Willie.

Having been elected as a draft dodger and, on the record, in writing, as someone who “loathed the Military” there was much public conjecture as to what extent the members of the Armed Services would consider him as “legitiment.” Not so fast, his defenders argued, abandoning the MacArthur view they espoused when attacking Ollie North. Officers are duty bound to honor the orders of their duly elected Commander-in-Chief, the left argued. Personal views about the legitmacy of command don’t matter. The election settles all.

So……….It would seem that good Mr. Young has tacked back once again from the argument the left used to defend Truman and Clinton, and back to the opposite argument used to attack North–namely that “mere” elections don’t matter–each individual gets to decide on his own whether or not to obey the “narrow interests” of duly elected officals who employ them–depending on one’s own idyosyncratic personal defination of “America” writ large, and foisted off on the American public.

The overt hippocracy involved in such convenient philosophical swerves is sickening enough to make even the proverbial Jackel wretch.

19

Gary Young 07.28.05 at 10:28 pm

rvd has me tacking back and forth from one position to another when in fact I’ve made no comment on either the MacArthur or North situations. I’m not going to comment on them now because I think they’re of limited relevance. (For one thing, to my knowledge neither MacArthur nor North were attorneys.)

The rules of legal ethics do not give a “good German” safe harbor. There are times when one is expected to tell one’s client that one can’t do as requested because the law doesn’t allow it.

In the case at hand, is it really asking so much that the authors of the memos give a full and fair statement of the law rather than selectively tailoring the truth to suit the client’s wishes? (Assuming for the moment that that’s in fact what they did, as many commentators have suggested.)

Is it really so terrible a sacrifice that the authors of the memos resign rather than violate their ethical obligations? That’s all we’re talking about here — not the dissolution of the Republic.
(And that’s another reason why your North example isn’t particularly apt — I’m not suggesting that the authors should have gone behind the administration’s back and acted on their own; merely that they should have reminded their client of their ethical obligations and resigned if the client refused to take no for an answer.)

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