Two anxieties seem to me to suffuse much discussion of OLC memoranda concerning abusive treatment of prisoners. One anxiety is whether professional competence should be a defense to moral criticism. Another is whether there is such a thing as an objective rule of law for the memoranda to subvert. (Other than as mentioned below, I have no specific authors in mind; this is just my impression based on many arguments I have seen.)
If I am right in my impression, then we might improve debate over these memoranda by acknowledging the anxieties more explicitly and attempting to work around them. The net result might be more productive inquiry into how the memoranda came to be and what effects they had. (More below the fold.)
1. Fairness to the lawyers involved. Some but not all work product has been released and the actions of the relevant lawyers have been debated, with much critical discussion. It would be fair to free them from constraints of privilege and confidentiality and provide them a forum to set forth fully their view of their actions. That does not require a formal inquiry, but I think such an inquiry would be the most trusted and thus best forum.
2. Lessons for future practice. Critics of the memoranda have raised points sufficient to believe that a fuller understanding of how these memoranda came to be written and what effects they had would be useful to future government lawyers, to students of legal practice, and to our students. One need not accept any particular substantive criticism to agree with this point.
3. Democratic self-governance. The moral and legal issues the memoranda address are sufficiently important that it is reasonable to believe a full inquiry into them will improve our understanding of the choices the government has made in the past and thus our ability to choose well in the future.
Two objections to inquiry come to mind. One is that the prospect of such inquiry might chill the candor of advice in the future. Client representatives always retain the power to waive confidentiality, however, as many lawyers for entities have discovered when new management cooperates with an investigation. And so much of this work has been disclosed at this point that I doubt an inquiry would produce much in the way of incremental chill.
Another objection is that it is time to move beyond the debates such inquiry would fuel. This is a strong point, but it seems likely that lessons will be drawn from this experience with or without inquiry, so that it is unrealistic to expect a truly fresh start. It would be better that the lessons drawn be based on a fuller understanding of what happened than, I think, we have now.
I posted a link yesterday to a story about the ethics of using misleading tactics to gain access to quasi-private Facebook information. Today, the ABA eJournal posted this story about a Fordham Law School professor who asked his class to find personal information about Justice Scalia using online sources. The assignment was designed to demonstrate the availability of private information on the Internet. It worked. The students found online photos of Justice Scalia's grandchildren, his home address, his wife's email address, and other personal information.
According to the story, Justice Scalia wasn't too thrilled. But given the professor's rationale for the exercise and that none of the information was disseminated publicly, I have no problems with the assignment. I am curious to know, though, how the students uncovered the information. Did they use any misleading tactics that would give rise to the same sorts of concerns described in my earlier Facebook post?
Lawyers have at their disposal powerful new resources to uncover information about opponents and witnesses, as the Facebook post and the classroom exercise illustrate. Going forward, I suspect we're going to need much more guidance from ethics opinions and, ideally, in the rules of professonal conduct concerning the types of investigative tactics that are permissible. As I suggested in my comments to the earlier post, I think these sorts of investigations should be ethically permissible as long as the lawyer is not breaking the law and the lawyer's investigation is misleading only to the extent necessary to uncover ongoing illegal or impermissible activity (e.g., the "tester" exception).
Sometime in the mid-1970s, the deans of New York law schools were summoned to a meeting with the leadership of the N.Y. Character and Fitness Committee. The agenda was a proposal to enhance the exclusionary powers of the committee. At the beginning of the meeting, I moved that the C&FC be abolished. That motion got nowhere (I don’t think it got a second), but neither did the committee’s proposal to expand its powers.
During the course of the meeting, I learned about the case of a young woman who had been denied admittance by the committee. The reason for her exclusion from the bar on grounds of C&F was the following part of her interview by the C&F examiner:
Q: Do you live alone?
Q: Do you live with a man or a woman?
A: With a man.
Q: Are you married to him?
The young woman was ultimately admitted, but only after she had had to retain a retired federal judge (a Judge Tyler?) to represent her to get the exclusion reversed.
After the meeting, I gave a ride home to the then chairman of the committee. “That was a disturbing story about that young woman,” I said. “Yes,” he agreed, “and the whole thing was so unnecessary.”
And then he added, “I mean, why did she have to give all those smart-ass answers.”
Writing at Balkinization, Brian Tamanaha raises some interesting points about the factual premises of recently released OLC memos. (See this and this.) His basic arguments are:
(1) OLC lawyers could not have relied in good faith on the representations of CIA officials regarding the effects of various abusive techniques because such officials had an incentive to understate those effects (which they had already produced in some cases) in order to gain legal cover for their actions. They had an incentive to lie.
(2) Those lawyers could not in good faith issue opinions regarding the use of such techniques in combination because there was no evidence of what happened when the techniques were combined.
I don't have a brief for these memos, much less for the policy choices that led to them being written. But I do worry that moral objections to abusive treatment too readily lead to claims that the lawyers in question had to have been corrupt rather than mistaken.
In my view, such basic moral objections tend to undermine the notionally professional discourse they animate (more on that in a separate post). More practically, and thus more importantly to me, moral objections couched as professional objections are more likely to impede than to assist investigation into how the memoranda were written and what effects they had. Such investigation seems doubtful as it is; no one is going to take seriously hearings that amount to no more than an extended version of the two minutes' hate.
I favor investigation, so I favor caution in drawing inferences of ill motive. The move should be a last resort, made only if compelled by the evidence. And, I believe, Professor Tamanaha too readily infers bad faith from the premises identified above. The reasons are below the fold.
The Philadelphia Bar Association's Professional Guidance Committee recently issued an opinion concerning a lawyer's proposed investigation of a witness's Facebook page. The lawyer wanted to ask a third person -- someone whom the witness would not recognize -- to send a "friend" request to the witness. The lawyer believed that the witness generally granted these requests and that the third person would be able to uncover information that could be used to impeach the witness at trial. (The information could only be read by the witness's Facebook friends.)
The Committee, citing Rules 5.3, 8.4, and 4.1, said that the lawyer could not engage in such an investigation. That seems like the right answer to me. Anyone disagree?
Thanks to the ABA/BNA's Lawyers' Manual on Professional Conduct for the lead. (For those of you who do not subscribe to the Lawyers' Manual, I highly recommend it. It has great material on current events relating to legal ethics as well proprietary guides on legal ethics that I have often found to be quite valuable.)
Here are the allegations: A Massachusetts lawyer discovered child pornography on a client's computer and told his firm about it. The firm instructed the lawyer to destroy the child pornography, and the lawyer refused to do so. The lawyer (correctly, in my view) explained that the firm could not conceal or destroy evidence of a crime. The firm then fired the lawyer for failing to follow instructions. The lawyer subsequently revealed the child pornography to the FBI and sued the law firm for wrongful termination.
A Massachusetts trial court dismissed the wrongful termination claim, observing that the claim would lead to the disclosure of privileged or confidential information. An appeals court disagreed and has held that the claim may proceed. Here's the story from the Massachusetts Lawyers Weekly.
If the allegations are accurate, this is quite a black eye for the law firm involved.
Some of you may recall that a proposed settlement of a class action against TD Visa had included a provision that $14M be placed in a fund for distribution to the 16 Canadian common law law schools for teaching related to legal ethics and professional responsibility. The judge declined to approve that aspect of the settlement, stating that there was an insufficient relationship between the matter of the suit and legal education, and also questioning the merits of setting up an independent administrative structure for the funds. The plaintiffs' counsel has been asked to submit a revised proposal. Meanwhile, cash strapped law deans (and day-dreaming p.r. professors) are crying into their beers. Sigh.