Why Even OLC Lawyers Ought to be Ethical

David Luban

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.