Rules of the game

>> Friday, December 19, 2008

Over at Slate earlier this week we have a piece by Milan Markovic titled "Lawyers Aren't Special - Why it's legitimate to investigate the Bush lawyers who may have approved war crimes." Markovic doesn't waste much time dismantling the rather self-serving arguments of various commentators who have argued that the attorneys who gave the Bush administration bad advice about violating Federal laws prohibiting torture ought to be immune from investigation and/or prosecution.

One or two of Markovic's arguments are a little spurious (for example I find his analogy between the standards applied to soldiers and the standards applied to civilian lawyers a bit dubious), but I'm a little surprised his conclusion isn't self-evident. Well: surprised and not-surprised. I'm not surprised that a number of government lawyers have defended former DOJ attorney and memo-writer John Yoo and others, considering that their defense coincidentally could save their own bacons one of these days. Nor am I surprised that the general public and media really don't have any kind of real grasp on what lawyers do and how legal ethics work. (The fact that most of what Americans know comes from legal shows where heroic attorneys engage in shady practices every week for the sake of their innocent clients or to send vicious predatory criminals to prison--whether or not the show is produced by Dick Wolf largely seems to determine whether it's the defense attorneys or the prosecutors who are heroically shady--doesn't help any.)

In the United States, there are basically two ethical traditions currently in force. Up until 1969, legal codes of ethics were a hodgepodge, but in '69 the American Bar Association1 promulgated a Model Code Of Professional Responsibility (CPR) that was adopted by most states. In 1983, the ABA noted certain places where the CPR could be clarified and issued the Model Rules Of Professional Conduct (RPC), which was adopted by most states (Wikipedia says that New York remains the sole CPR jurisdiction).

The argument that people like Mr. Yoo shouldn't be investigated, sanctioned or prosecuted can be summed up be passages like this one from a recent piece by Jack Goldsmith in the Washington Post:

But we should also recognize the costs of these investigations. Second-guessing lawyers' wartime decisions under threat of criminal and ethical sanctions may sound like a good idea to those who believe those lawyers went too far in the fearful days after Sept. 11, 2001. But the greater danger now is that lawyers will become excessively cautious in giving advice and will substitute predictions of political palatability for careful legal judgment.

This argument isn't merely wrong, it's retarded. Here's why: every single licensed lawyer is subject to second-guessing of any of his decisions under the threat of criminal and ethical sanctions. This isn't a novel proposition, rather it's a cornerstone of the entire project of regulating the legal industry through a self-regulating supervisory body under an ethical code of conduct such as the versions of the CPR and RPC adopted in some form or another by every state in the country.

Here's one thing no lawyer can do, whether he's in a CPR state or a RPC state: a lawyer cannot advise his clients how to go about breaking the law. He can advise a client as to the legal consequences of a course of conduct--e.g. a tax lawyer might advise whether a particular investment will cause a tax liability or instead be deductible, but he can't tell his client how to dodge taxes. A criminal lawyer can tell a client what will happen if he makes a statement to police or how a piece of evidence might be admitted by a judge and considered by a jury, but he cannot tell a client how to commit a murder and get away with it. It's admittedly a fine line at times--a lawyer can't tell a witness not to show up, but certainly can point out how a witness' presence helps or hurts the other side's presentation of evidence. But no advice on actual lawbreaking, no way, no how, hell no.

Take Model RPC 1.2(d), "Scope Of Representation" (some version of which can be found in any RPC state's ethics code):

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law

There are similar provisions in the CPR.

A treaty that has been ratified by the U.S. Senate is the law of the land. A lawyer may advise the President on the meaning of the treaty, the validity of the treaty, the scope of the treaty, or the consequences of violating the treaty--but he can't tell the President how to violate it and get away with it. Mr. Yoo and others may argue, of course, that the infamous "torture memos" engage in the former and not the latter--I disagree, for whatever that's worth, but they're entitled to defend themselves and their licenses to practice or freedom from fines or imprisonment if they've broken the law. But what they're not entitled to argue is that yes, they're lawyers who are engaged in the practice of law, only they're not actually subject to any of the disciplinary rules of the Bar they're admitted to; and they're certainly not entitled to pretend the law doesn't apply to them, to claim that even if they're in the absurd situation of having committed a crime they can't be censured or disbarred for, they shouldn't go to jail, either--not unless they have some recognizable claim of immunity that trumps everything else (good luck with that).

A lawyer who has a question about his ethical obligations is expected to consult the Bar, not to flaunt the rules and (sort of) apologize later. Those who would worry that Bar Ethics Committees might be consulted about national security concerns might consider that such questions can be phrased very generically, and they might consider the obvious problem for apologists: one doesn't need to get into the contents of intelligence operations to ask a Bar ethics committee a question like "May a lawyer write a memo for his client in which he tells his client how he may commit acts which violate the letter or spirit of a law that would otherwise apply to the client?" Even a layman who has read the above-quoted rule 1.2 is likely to guess what the answer to such a query is going to be.

The ABA comments to Rule 1.2 go a little further, even, clarifying among other points that an attorney cannot "knowingly assist a client in criminal or fraudulent conduct." This is crucial, of course, because even if somebody like Yoo were to argue that he was merely explaining the law and what it didn't cover, you would have to have fallen off the proverbial turnip truck yesterday to believe that Yoo didn't know what the administration was after--his memos and those written by others at Justice weren't an explanation of the Geneva Convention, they were an explanation of how to circumvent the Convention.

Furthermore, 1.2 isn't the end-all of the ethical rules, and the rules that go along with 1.2 and address similar concerns don't make the torture writers and their apologists more sympathetic. Rule 1.16(a)(1), "Declining Or Terminating Representation":

Except as stated in paragraph (c) ["When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation"], a lawyer shall not represent a client or, where representation has commenced, shall withdraw from representation if:

(1) the representation will result in violation of the rules of professional conduct or other law....

Do you get that? The ethical obligation of a lawyer who is asked to do something that violates ethics or the law--say, for instance, authoring a memo to explain how the law might be circumvented--is to quit. Easier said than done? Well tough shit, that's how it goes when you're a licensed attorney. If you want a job where there's not a list of ethical rules you have to follow to keep your ticket to keep working, I hear there are many fine opportunities at Starbucks.

Of course I'm flip about that. I've practiced law eleven years, now. If I'm accused of breaking the rules, I expect to get a letter from the State Bar. If the charge has merit, I've been informed I'll be sanctioned. All this fucking whining I'm hearing from the former DOJ officials who are pissing and moaning that the same rules every other fucking attorney in the fucking country operates under does not fill me with one single subatomic scrap of sympathy. They make you take an ethics class in law school and they make you take a section on the Bar and they make you take periodic "professional responsibility" classes to keep on keeping on, and you're going to claim some privilege because your client is special and because following rules is hard? I don't think so.

Let me summarize my response to Yoo, his peers from DOJ, and his apologists: fuck you.

Excuse me. Let's get back to a dispassionate discussion of rules, insofar as a dispassionate discussion is possible. Rule 2.1, "Advisor":

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.

This is actually a double-whammy against the torture advocates and apologists. First, because an attorney is permitted to advise his client, and indeed should advise his client that even if something is legal it might be a bad idea: "Yes, Mr. President, you could take this position, except that doing so would break with several centuries' moral and ethical progress and make you a horrible monster who would deservedly be remembered as such in every history book." Or more succinctly, "Dude, why are you even asking me if you can do that, what are you, some kind of fucking evil lunatic?" Second, look at the last part of that quote from Goldsmith up there:

...the greater danger now is that lawyers will become excessively cautious in giving advice and will substitute predictions of political palatability for careful legal judgment.

Greater danger? Is he kidding? It's not an either/or, substitution kind of thing: a lawyer has an ethical duty to take politics into account as part of comprehensive legal advice. If a course of action would score political points but is illegal, "careful legal advice" would be to tell the client that doing something will score points but be illegal. If a course of action would be arguably legal but immoral and might cause friction with the Other Party in the legislature, then "careful legal advice" is to say so. Goldsmith's argument is so stupid it's actually incomprehensible.

There's a story that comes to mind here, one of those apocryphal things you read somewhere in law school and never can track down later. The story I'm thinking of goes something like this: a prospective client goes in to see The Great Jurist--an attorney then in practice who later went on to the Supreme Court or a seat on the Appellate Bench somewhere and made a national name for the sagacity of his opinions (I wish I could remember which Great Jurist this allegedly was; I don't think it was Oliver Wendell Holmes, but then maybe it could have been). The prospective client, we're told, sits down with The Great Jurist and sets out an account of hardship and conflict with an old business associate or a neighbor or a family member or one-time friend or somebody, and The Great Jurist listens and nods, politely interrupting now and then to ask the occasional pertinent question. And at last the prospective client reaches an end to his tale and asks, "So, do you think I have a case?"

And The Great Jurist nods and says, "Yes, I think you have an excellent claim."

"You'll take my case?" the prospective client asks eagerly, leaning forward.

"Absolutely not," The Great Jurist says. The prospective client is dumbfounded.

"But you just said I had an excellent claim?" he asks, baffled.

And The Great Jurist replies, rising to his feet to see the prospective client to the door, "Oh yes, you do--and you'd be a complete jackass if you pursued it."

That is "careful legal advice," not just whether or not a client can do something, but whether he should. And whether or not he should, well morality and politics and such aren't merely incidental, why, they're essential elements of being careful and thorough. The attorneys at DOJ who wrote torture memos were never obliged to tell their clients what the clients wanted to hear or hoped to hear, they were ethically obligated to tell their clients what they had to hear, ought to hear, needed to hear. And even if, somehow, a diligent lawyer concluded there was a loophole in the laws against torture, an ethical lawyer would have been obliged to point out all the ways in which torturing prisoners or almost-torturing prisoners would be a bad idea. Even if the DOJ lawyers concluded that waterboarding or stress positions weren't "technically" torture, even if, they were still obligated to point out that a Federal Court might disagree, that the Hague might beg to differ, that journalists might criticize the decision and large segments of the American population might be disgusted, that other nations might look at our "not really torturous" acts and find us reprehensible and wicked and what problems might arise from that.

Did Mr. Yoo or any of these DOJ lawyers ever point out any of this? Did they ever say, "Stop!" or how about even "Wait!"?

Model RPC Rule 8.1, "Misconduct":

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or so so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects....

I believe that a number of DOJ lawyers violated their states' versions2 of this rule. But let's say I'm wrong in my conclusion--there's still a colorable claim they've done so that needs to be investigated. If these lawyers did violate their ethical obligations, they deserve to be sanctioned for it (including a possible revocation of their licenses to practice law). And if they've violated the law, I don't think there's a forgivable argument for immunizing them from prosecution.3

They knew the rules when they agreed to play.

1The ABA, by the way, is a policy, advocacy and trade organization, not an official, licensing or disciplinary organization. Publications such as the CPR and RPC were released as models, a list of rules arrived at after much deliberation and submitted to the State Bar organizations--mandatory licensing organizations under state charters that regulate the practice of law--to be adopted wholly or in part as they saw fit, with any changes or amendments they might choose. Most states adopted one or the other set with few or no changes, so that one can refer to "CPR states" or "RPC states," because the ABA did the hard part of debating rules and wordings and soliciting opinions and advice, but no state had to.

I feel obligated to cover this in part because of a scene I saw on a television show several years ago, a show I will not name although it was a spin-off from a very popular show about a teenage vampire hunter featuring her vampire-with-a-soul ex-boyfriend and the main bad guys on the show were an evil law firm controlled by demons; anyway, there was an unintentionally comic scene in an early episode in which one of these bad guys was threatened by someone who was going to report the evil lawyer "to the ABA," a threat which has all the force of Cardinal Ximénez ordering Biggles to produce the soft cushions. It was hard to take the rest of the episode (or the rest of that first season, frankly) as seriously as a show about a moody pretty-boy vampire who refuses to kill humans (even if they're Los Angelenos) ought to be taken.

2In North Carolina, by way of example, Model RPC Rule 8.1 is actually codified as Rule 8.4; every state has a version of this rule, but not always in the same place.

3I can think of unforgivable arguments, like, "Oh, well let's move on instead of getting lost in partisan bickering"; that argument may be pragmatic, I'll concede, but it's utterly amoral and suggests the law exists only to punish those who are trivial and powerless--such arguments are tyrannical at heart.


Janiece Murphy Friday, December 19, 2008 at 10:11:00 AM EST  

Eric, thank you very much for this thoughtful and informative post.

It's valuable for me to read the opinion of someone who is subject to the same rules and criteria as the attorneys being accused of wrong-doing.

John the Scientist Saturday, December 20, 2008 at 11:38:00 PM EST  

"suggests the law exists only to punish those who are trivial and powerless--such arguments are tyrannical at heart."

I agree they are tyrannical, but, then as the laws are applied, (though not as they are written), this has been at least partially true throughout our history.

As Terry Pratchett put it, there is no law for the incorrigibly lawless, because they don't give a rat's about punishment. They don't like it, but when they get out it's not like they lost a high powered career to it.

There's no law for the rich and powerful, because they can buy or influence their way out of trouble (if OJ were a pauper, he'd be in prison).

I'm not completely sure if that Kennedy cousin is guilty of the murder he's charged with, but it was quite refreshing to see him tried after dodging prosecution for so long.

Us law-abiding suckers in the middle who fear the loss of our livelihood, and the marginally bad decision makers who get ground up in the wheels of the justice system are the ones who are the easy targets the prosecutors go after if they can.

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