Balkinization  

Thursday, November 15, 2007

Why Even OLC Lawyers Ought to be Ethical

David Luban

Marty doubts whether ethics rules get at what’s wrong with OLC lawyers giving legal advice tailored to letting the President do what he wants to do. And he invites me to respond. Here goes.

He writes:


Now, it's not at all clear to me exactly what "ethical obligations" are pertinent to, for example, OLC lawyers who are providing advice to the President in furtherance of his constitutional obligation to faithfully execute the law. Such lawyers have a very different sort of relationship with their client -- and their client has a very different sort of function -- than in the prototypical case of a private lawyer giving advice to a private client who wishes to avoid legal liability. Personally, I'd say that OLC's obligations are in some respects more demanding than those required by ordinary ethics rules -- but in any event, they're different; and my inclination is to say that ordinary ethics rules therefore don't really capture what is at stake here.

Marty doesn’t mean his first sentence literally. Of course it’s clear to Marty that an OLC lawyer who goes to a party and tries to impress the admiring guests by blabbing about the hush-hush FISA opinion he is working on at the office has violated an ethical obligation – the obligation of confidentiality. And it’s clear that if the lawyer writes an opinion without doing the legal research, his negligence violates the ethical obligation of competence, because, in the words of the D.C. Rules of Professional Conduct, "Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation." I can’t believe that Marty thinks the basic rules of lawyer’s ethics are irrelevant just because the lawyer works for the Office of Legal Counsel. You might want to quibble about labeling all these rules "ethical obligations," because Rules of Conduct don’t always have to do with ethics in the moralist’s sense. Sometimes they are just a regulatory code. But in the examples I gave, the ethical dimension is undoubtedly there: the rule against betraying confidences and taking the pains reasonably necessary for doing your job are regulatory rules with an ethical basis.

Now it happens that one of these rules is labeled "Advisor." It reads: "In representing a client, a lawyer shall exercise independent professional judgment and render candid advice."

"Independent" professional judgment means "independent of the client," as the first comment to the rule makes clear: "Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront....However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client." And "candid" advice means telling the client what the law, in the lawyer’s best judgment, actually means. This rule, too, has an ethical basis. In the first place, it tells lawyers not to chicken out from hard conversations; it's a requirement of a certain measure of guts. In the second place, it tells the lawyer that as an advisor, he or she is more than an instrument of the client’s will. This is true for lawyers in private practice, but I see no reason at all to think that a lawyer-advisor carries different obligations when the client is White House.

This obligation of the advisor is very different from the standard conception of the lawyer’s role as courtroom advocate. In the courtroom, the lawyer’s job is to press the client’s case, counting on the opposing lawyer to highlight its weaknesses, and on the judge to check the lawyer’s one-sided presentation of the law. In the advice-giving setting, there is no opposing voice and no judge. That’s why, for more than four decades, the codes of responsibility for lawyers have distinguished sharply between the advocate’s role and the advisor’s. The advocate, in the words of the 1969 Code of Professional Responsibility, "should resolve in favor of his client doubts as to the bounds of the law." But not the advisor: the advisor is supposed to give the law to the client straight.

But what if the client doesn’t want the law straight? There’s an old legal adage attributed to Elihu Root: "The client never wants to be told he can't do what he wants to do; he wants to be told how to do it, and it is the lawyer's business to tell him how." Root was a corporate lawyer, and he was cynically expressing – a century ago – the scofflaw attitude of business people who resent lawyers who say "no." But lawyers who say yes to whatever the client wants ("Dr. Yes" was reportedly John Ashcroft’s nickname for John Yoo) violate basic ethical norms of what legal advisors are supposed to do. As I’ve written elsewhere, lawyers who write opinions saying yes to whatever their clients want are no better than indulgence sellers.

Marty thinks that OLC lawyers are in a fundamentally different relationship with their client than private lawyers of corporate clients. I think that’s partly right – but only partly. The part that’s right is that OLC opinions can bind the executive branch – if not by law, then by custom. That puts OLC opinions on a nearly-equal footing with decisions of the D.C. Circuit Court of Appeals, where most cases involving the executive branch get litigated. The big difference is that the OLC renders its opinions in secret, and without hearing adversarial arguments to satisfy the basic maxim of procedural justice – audi alteram partem, "hear the other side."

That makes the duties of independence and candor even more crucial. Lawyers whose legal advice – including secret advice – writes the law for the most dangerous branch of government have an awesome responsibility. It’s a responsibility not only to the client and the law, but to a country that is, without knowing it, being governed by twenty unknown lawyers in the Justice Department. (Quite frankly, the OLC is a scandal to democratic government, but that’s a subject for a different day.) Marty is quite right that the OLC’s mission should be to help the President fulfill the duty of faithful execution of the laws. But he’s wrong if he thinks that mission substitutes for the basics of legal ethics. That mission is over and above the duties of legal ethics.

And he’s wrong if he thinks that indulgence-selling is fundamentally different when the lawyers are writing indulgences to the President rather than private clients. Indulgence-selling is fundamentally worse when lawyers are absolving the President rather than Enron – but that’s because the President’s public trust runs deeper, not because the nature of the sin is different.

Marty is a constitutional lawyer, and an extraordinarily good one. If I were to venture a diagnosis, I think that fact makes him suspicious that ethics rules – mere ethics rules – miss the special, exalted status of constitutional lawyering at the upper reaches of government. He thinks that ethics rules don’t capture the refracted sunbeams of the Faithful Execution Clause.

Constitutional law, in the eyes of many, is the Holy of Holies in American law. It’s up there in the Empyrean. Ethics rules, by contrast, are the lowliest of the low. They are court rules rather than statutes, they are state rather than federal, and they govern a million people rather than 300 million. They are also, to be perfectly frank, very dull. Constitutional law is exciting and charismatic. It’s the province of The Supreme Court of the United States. Legal ethics is the province of grubby little grievance committees. It’s what you cram for before you take the multistate professional responsibility exam. (As one of my students remarked some years back, the MPRE is like the written part of the driver’s test.)

The fact is, though, that the ethical conduct of the million lawyers is far more important to the legal system than the journeywork of the nine justices. As I have written in Legal Ethics and Human Dignity, the lawyer-client consultation is the primary point of intersection between "The Law" and the people it governs, the point at which the law in books becomes the law in action. Most law is outside the courts, not in it; and most legal "decisions" take place in conversations between lawyers and their clients – conversations that never leave the office. This is a familiar law-and-society theme – but familiar as it is, we often forget it.

Marty errs, if I’m right, in thinking that the constitutional tremendousness of what the OLC does puts it on a plane above ordinary legal practice. But it’s a mistake, in my opinion, to get swept up in the higher ecstasies of Constitutional Law and the Thrones, Powers, and Dominations who occupy Constitutional Law Heaven – the Justices, the clerks, the theorists (sorry, Jack!), and the high priests in the OLC and the Solicitor General’s office. The law, as the Book of Deuteronomy says, "is not in the heavens, that you should say, ‘Who among us can go up to the heavens and get it for us and impart it to us, that we may observe it?’" The law is very near. It's what we find in our lawyer’s office on the fourth floor of the Kresge Building, three doors down from the orthodontist. (If you see the Home Depot on your left, you've gone too far.) It’s law’s ordinariness, and the extraordinary role that lawyers play in vending it to us, that is precisely why legal ethics is important: if the lawyers are just Holmesian Bad Men and Bad Women following Elihu Root's cynical advice, the law might as well not be there.

And that is why ethical obligations matter in the Office of Legal Counsel. It's perhaps odd that the OPR is investigating for violations of the maxim of competence. But it makes a certain amount of sense: a legal opinion that is deeply eccentric in its interpretation of the law is not much different from an opinion written without adequate research. I've suggested that the more genuine violation is of the rule requiring candid and independent advice. But it would be almost impossible to prove a violation of that rule: to show lack of candor would require showing that the lawyer knew how eccentric his opinion was, and that seems impossible.


Comments:

I have often encountered the attitude of "find me a way to do X" when tasked to review various compliance requirements. However, I agree that the ethical requirement is to determine what the compliance rules require first.

The question that is often raised is how compliance will impact sales, or P&L. My answer is that this is what the regulation requires, and then explain the consequences of non-compliance. The C-level may make a risk management decision and go against the advice, but the consequences are still laid out.

Once you go down the path of analyzing the rules to avoid them, your ethical and moral defense moves from thin to non-existant.
 

Not being a lawyer, but having the utmost respect for the law, I can’t always tell when an argument has legal merit except through using my 65 years of life experience as an American citizen. Any lawyer, through microscopic parsing of language and eliding over 200 hundred years of precedent, who can come up with a rationale that justifies blatant illegality (especially for the ultimate “Servant of the American People”), has by definition committed an ethical offense.
 

“(…) But it would be almost impossible to prove a violation of that rule: to show lack of candor would require showing that the lawyer knew how eccentric his opinion was, and that seems impossible.”

Impossible? I guess it depends on the standard of proof applicable to establishing whether a violation of the rule in question has taken place or not, something which I admit that I'm totally ignorant of (I'm not a lawyer licensed to practice in the US). However, just for the sake of the discussion, allow me to speculate a bit.

If the standard is a smoking gun (e.g., a written acknowledgement of the fact), it would indeed seem impossible here to prove a violation of the advisor's ethical duty. But, if the standard is a reasonable inference of the surrounding, relevant facts, determining that a violation has taken place would seem to me far from impossible. Which surrounding facts are relevant here? Inter alia: the qualifications of the advisors; the position they held and the degree of responsibility it entailed; the material importance of the subject matter of the advice; the factual and political context in which the advice was provided and the foreseeable consequences of its provision; provided the advisors' ability to amend or recant it, the analysis of the relevant advice offered by other highly qualified counsel to the government when made aware of the contents of such advice and the reaction of the advisors to such analysis; subsequent reactions of the advisors to the analysis of the relevant advice offered by other, independent, highly qualified jurists.

All of the above is in the public record and, to me, if the lower standard of proof does indeed apply, it doesn’t seem unreasonable to conclude that the Torture Lawyers knowingly didn’t provide candid advice. Particularly damning I believe is the fact that, once made aware of this circumstance by other lawyers in the Administration, they systematically and without any consistent basis refused to modify their advice in a manner that, without necessarily having to change the main conclusions of their advice, at least offered all the relevant information, including precedents, legal risks involved, and alternative options. A new guy, Jack Goldsmith, had to come into the picture for that to happen. But his tenure was short, and it's now also in the public domain that his replacement nullified Jack's modifications of the Torture Lawyer's advice.
 

If the lawyer provides the client with candid and independent advice, and the client ignores such advice, how might the lawyer then be limited in providing legal advice and guidance that gets into the grey area, coming close to the line, possibly crossing the line, in order to give the client a "yes" instead of a "no." This dilemma can arise in an everyday practice of law but obviously in OLC the consequences can be most serious.
 

The OLC is not a neutral arbiter of the law like the judiciary and certainly not an advocate for Congress in imposing legislation on the Executive. Rather, OLC is more akin to a law firm advising a business (in this case the Executive) how to navigate through the legal maze to provide its client the maximum freedom of action.

In the case of often vague and always political constitutional balance of powers issues (such as whether the President or Congress may direct foreign intelligence gathering), the OLC arguably has less of a role. Courts try to avoid these issues as political problems to be worked out between the branches. It is unrealistic to expect the OLC to take a more aggressive stance than the courts.
 

As I’ve written elsewhere, lawyers who write opinions saying yes to whatever their clients want are no better than indulgence sellers.

I like the image of John Yoo as a modern-day Johannes Tetzel. I'm still waiting for someone to post those 95 theses, though.
 

"Most law is outside the courts, not in it"

I find this a fundamental truth. The Constitution has presidents and legislators swear/affirm to uphold it, but as another comment implied, many laugh that off.

Whatever gets you the votes, you know. Doesn't quite work that way. Thank goodness, since a vast majority of disputes involving fundamental legal and constitutional matters never get to the courts or if they do, take a longggg time to be settled.

The person that said that our rights are not secured by parchament barriers had a point.
 

Prof. Luban:

In the first place, it tells lawyers not to chicken out from hard conversations; it's a requirement of a certain measure of guts. In the second place, it tells the lawyer that as an advisor, he or she is more than an instrument of the client’s will. This is true for lawyers in private practice, but I see no reason at all to think that a lawyer-advisor carries different obligations when the client is White House.

Indeed. Consider the analogous case of a doctor's professional responsibility. You don't go to a doctor to get someone to "sign" the prescription for the drug you think you should have (at least it's not supposed to work that way). You're supposed to work out, through "consultation", what are the risks and benefits of your options, and work together for the best course of action for you. I don't see why it should be different with a lawyer. A lawyer is under no obligation to argue a position clearly contrary to law, and a doctor is under no obligation to prescribe a drug or a therapy that is clearly proscribed or banned under such circumstances.

Cheers,
 

Prof. Luban:

Indulgence-selling is fundamentally worse when lawyers are absolving the President rather than Enron – but that’s because the President’s public trust runs deeper, not because the nature of the sin is different.

... and also because the preznit is the one who is supposed to enforce the law, and as such is not likely to allow the adversarial position (which is under his own thumb) to curb himself.

Cheers,
 

It's easy to win an 'argument' when you assume your conclusions:

["Bart" DePalma]: In the case of often vague and always political constitutional balance of powers issues (such as whether the President or Congress may direct foreign intelligence gathering), the OLC arguably has less of a role. Courts try to avoid these issues as political problems to be worked out between the branches....

When one branch passes a law and the other one ignores it, someone's got to step in. See, e.g., Youngstown.

... It is unrealistic to expect the OLC to take a more aggressive stance than the courts.

Nice "straw man". Who says they have to? In fact, you may well find to your satisfaction, I'm quite sure, "Bart", that the courts take a "more aggressive stance" than Dubya's OLC ... oh ... right ... they did.

Cheers,
 

In the case of often vague and always political constitutional balance of powers issues (such as whether the President or Congress may direct foreign intelligence gathering), the OLC arguably has less of a role. Courts try to avoid these issues as political problems to be worked out between the branches. It is unrealistic to expect the OLC to take a more aggressive stance than the courts.

This is totally wrong, Bart. Often times, disputes between the branches are unreviewable by the courts (and certainly the Bush Administration has taken that position over and over again), and in those instances, what the OLC says is effectively law.

In those situations, an OLC lawyer may be the only thing protecting us from a gross violation of the Constitution.
 

In the case of often vague and always political constitutional balance of powers issues (such as whether the President or Congress may direct foreign intelligence gathering), the OLC arguably has less of a role. Courts try to avoid these issues as political problems to be worked out between the branches. It is unrealistic to expect the OLC to take a more aggressive stance than the courts.

I would also add that there is no evidence that the courts consider the constitutionality of FISA on Article I grounds to be non-justiciable just because the Administration is going out of its way to keep the issue out of court. We all know what JAO says about that.
 

Part of the problem is that the labels put on the work aren't even accurate. The "torture memos," for example, were they submitted to a 1L writing TA, would get a big note at the top explaining the difference between a memo and a brief. The former is meant to give the client a dispassionate understanding of the law and the arguments that could be made for both sides; a brief is advocacy directed at a court or other decision-maker. If your client, including the president, asks you, "What is the law?" your obligation is to tell him how the law has been and could be interpreted from a variety of perspectives. If your client asks you, "How could the law be read to support what I want to do?" that's a different question -- but appears to have been the one that Yoo et al were actually answering.
 

"Dr. Yes"

That is precious.
 

Dear David and Marty,

My theory is that every single practicing attorney in the United States, including any employed at the White House or OLC, has an ethical obligation not to commit federal felonies such as assault, fraud, kidnapping, torture, and war crimes, or to enter a conspiracy to commit such crimes.

Where is that mistaken?

These people should be indicted, convicted, and disbarred for life.
 

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