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Government Lawyers’ Ethical Obligations and the War on Terror

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5 Responses

  1. John Steele says:

    Interesting post. I wanted to comment on just one part, near the end, where you wrote: “To avoid such ‘ethically blinkered’ results, insists Shane, government lawyers ‘must remember that their ‘client’ is the American people, and not the emphemeral roster of incumbent federal office holders.’”

    The notion that the client of a government lawyer is the American people has some intuitive appeal. but there’s a lot of problems with it. First, to my knowledge the cases run the other way. The Model Rules, 1.13[9] run the other way. Second, defining the client that way throws the normal law of lawyering into confusion. For example, the client chooses the lawful objectives of the representation and the lawyer must consult with the client about the tactics (or means). Well, those rules and lots of others suddenly don’t make sense. Third, it runs counter to standard practices that no one has found problematic. There are lawyers in all three federal branches who spend much of their day figuring out how to stick it to the other two branches. That’s to be expected. But if the client is the “people,” then the lawyers have been hijacked by non-clients and put to personal purposes.

    The better approach, it seems to me, is to treat the government lawyer as a lawyer who represents an entity that has fiduciary duties to others.

  2. Jake says:

    As part of the justification for punishing government lawyers who wrote legal memos that some now find objectionable, it is stated that “there are widely understood standards for what is ‘good lawyering,’ including adequate research, factual investigation, consideration of opposing arguments, and sensitivity to the practical effects of government policy.”

    If these standards of “good lawyering” are so widely understood, then why do law schools routinely turn out graduates who have no clue whatsoever about these matters?

    Stated another way, if violations of these “good lawyering” standards were enough to support professional sanctions, about 90% of the bar would be in deep trouble.

  3. Andrew Taslitz says:

    John: I think you’re very likely right. I have to admit that I paused about including the “American people” quote for similar reasons. On the other hand, prosecutors, one kind of government lawyer, though perhaps a unique kind, are often said to be obligated to “do justice.” That phrase itself is ambiguous and certainly doesn’t spell out who is the prosecutors’ client, but your approach might work for that situation as well. Taz

  4. Andrew Taslitz says:

    Jake: In my experience anyway, new lawyers working at well-respected institutions are quickly socialized into these standards. And Shane himself talks about how they were widely embraced when he worked in the Justice Dept. under another administration. On the other hand, knowing standards and complying with them are two different things. Perhaps more importantly, I have to admit, even though I teach law students for a living, that I think that law schools generally do a poor job of teaching students the full range of what a professional culture requires and of putting them in situations where they really have to grapple with client and political pressures. I think the reasons for this are complex, but certainly many professors know what the culture requires. Their choice not to teach it or incorporate it into the curriculum for others to teach is not, I think, evidence that they don’t share the standards. They just see their roles as teaching something different and, when it includes lawyering standards, something narrower than practice actually requires. Now I’ll await the assault of my colleagues. Thanks for the post. Taz

  5. John Steele says:

    Andrew,

    As I understand it the Hofstra conference this fall will focus on this issue of government lawyers. And I often turn to the work of Kathleen Clark when these issues arise.

    I often hear that the government lawyer has a “higher calling” or “higher duty.” Again, it’s intuitively appealing to me. When I hear that I often ask this hypo. Suppose we had identical twins with identical legal educations. One takes a first job with the State Dept, the other with Halliburton. On their first day of work, each is asked to write a legal memo that defines torture under US law. Would the memos be identical? If not, why not? The proponents of the “higher duty” thesis have a hard time answering those questions. I think it’s a difficulty issue.

    A different, less problematic issue is whether government lawyers defending ordinary tort claims ought to employ the same bag of rhetorical and negotiating tricks that private practice lawyers do. Someone wrote an interesting law review article about that, but the author escapes me at the moment.