The editorial page of the New York Times has apparently been thinking through its reaction to the recent OPR opinions as deliberately as I have (note the quote in the title). The lede sentence is haunting to me as a lawyer:
Is this really the state of ethics in the American legal profession? Government lawyers who abused their offices to give the president license to get away with torture did nothing that merits a review by the bar?
And then there’s this:
As the dealings outlined in the original report underscore, the lawyers did not offer what most people think of as “legal advice.” Mr. Yoo and Mr. Bybee were not acting as fair-minded analysts of the law but as facilitators of a scheme to evade it. The White House decision to brutalize detainees already had been made. Mr. Yoo and Mr. Bybee provided legal cover.
And on the other side of the spectrum of American torture terror tactics, was the hard time and convictions given to guards for taking naked photos with prisoners. What the hell is uncle sam on?
At the risk of incurring much rath and condemnation, and in general terms not this specific case, isn’t this what attorneys are paid to do? Aren’t lawyers hired to find a way to justify what their client did or wants to do?
Headscratchin, you are thinking at too high a level of generality.
A lawyer who knowingly provides a wrong legal opinion so that a client can pretend he’s acting legally is a co-conspirator. The question between the two sides in the Justice Department is how clearly Yoo knew he was just making it up– the final position was that he was acting recklessly and that he shouldn’t be sent to bar discipline for recklessly getting it wrong.
Think in other contexts– say a securities scheme where a lawyer opines “they’ve disclosed everything and its all legal, fair and square.” If he knows there’s not been full disclosure or its not legal, his opinion is securities fraud and possibly criminally so. He’s been “paid to justify what his client wants to do” but he doesn’t get to hide behind that and escape responsibility for an illegal opinion.
The term “recklessness” means basically behaving negligently when you clearly know you’re being negligent– covering your eyes with your hands. I suppose it would be reckless for Yoo to say “I know this is so” if he knew he didn’t know it was so. But I think he clearly knew things– about Youngstown, about the language from treaties he omitted in partial quotes– that makes his state of mind intentional falsehood, not recklessness. So that’s the first problem I have with the final conclusion. I’m also inclined to think that the “close question” of bar discipline for recklessness should be answered by the bar disciplinary authority. Finally, I think one thing that should be weighed here is the seriousness of the opinion being offered– when the stakes are higher, recklessness or worse in getting it wrong ought to be dealt with more seriously.
Headscratchin, it is a lawyer’s job to assist his client in doing lawful things. Sometimes that means figuring out how a client can legally accomplish his plan, and sometimes that means telling a client there is no way he can do what he plans and still be on the right side of the law.
There is an old story about one of the robber barons who was trying to do a merger that would have violated the Sherman Anti-Trust Act. He sent a wire to his lawyer explaining his plan and asked: “Is merger possible?” His lawyer replied: “Merger possible. Jail certain.” That lawyer was doing his job.
So if a lawyer convinces himself he/she has found a novel new interpretation of a law that would allow his client to do something and it passes muster with the court, he is a hero. But if it doesn’t pass muster he is a criminal and should be dis-bared? That’s a pretty ugly risk/reward equation!
Obviously the difference NMC is pointing out here is that if Yoo intentionally and willfully misinterpreted the law, rather than tried an exercise in judicial interpretation, he has crossed a thresh hold that should have some kind of consequences.
I’ve had more experience with contract law (not as alawyer though)where attorneys hire staffs of people to comb through the contract parsing each word to find an alternative interpretation that can be exploited. That’s more where I was coming from with my comments. Sure doesn’t seem to be a dis-barable offense to willfull and intentionally misinterpret past court opinions and case law in that venue.
Your 2nd paragraph is a good summary, Headstratchin’.