Richard Painter's Curious Letter to the NYT

In a letter to the New York Times today, Richard Painter, my friend and co-author on a law review article, argues that lawyers in the Justice Department who had represented accused terrorists in private life should not work on terrorism matters - apparently at all - at Justice. They "should work on other matters."

Why? Because the "government has stated that most of these people are acting in concert, and that information obtained from interrogating one detainee has led to the apprehension of others." In effect, having worked for one, a lawyer will have worked for all because the terrorists act in concert.

It may be that Richard means only that the lawyers cannot represent the U.S. "in its effort to detain, interrogate, or try"  any alleged terrorists. That would not exclude policy work that is not specific to any investigation, trial, ec. But the last line - "they should work on other matters" - suggests Richard is saying they may not even work on terrorism-related  policies apart from specific matters.

Richard is identified as a law professor at Minnesota and chief White House ethics lawyer 2005-2007, bolstering his credibility on these issues.

I think Richard is wrong in so far as he is saying that because terrorists are all "acting in concert," we should treat all terrorists as if they were one client for conflict purposes, without further inquiry into the relationship in fact between cases.

 And I believe he is certainly wrong in then concluding, as I read him to say, that the Justice Department lawyers may not now have any role whatsoever in terrorism policy or matters at Justice.

If Richard means only that this is what the Department's policy "should be," not what it must be and not what the conflict rules require, then his letter has a very different focus and is much weaker. But I don't read it that way.

[CO-EDITOR's UPDATE: In the comments below, Richard Painter was kind enough to respond to Steve Gillers's post.]

Comments

[John Steele]

Here's a link to the letters: http://www.nytimes.com/2010/03/14/opinion/l14lawyers.html?scp=1&sq=richard%20painter&st=cse

Painter's is the first suggestion I've seen that there is a true conflict (at least that's how I read the letter). His assertion that the various matters are all related to each other seems rather broad and I agree that we'd need a better explanation from him about why the matters should be read together like that. (Perhaps he can offers a longer explanation.) I suppose that any particular matter might be related to another.

Speaking more broadly, I'm not sure we have a good answer to the question of when, if ever, are conflicts for government lawyers a matter for the public, the press, and the electorate to decide. We've seen the issue pop up in the Trutanich race in SoCal (here's the op-ed from Erwin Chemerinsky arguing for transparency: http://articles.latimes.com/2009/may/01/opinion/oe-chemerinsky1 ). Leaving aside the nasty aspects of Liz Cheney's video, I can't blame Sen. Grassley for asking for information about the specifics of the assignments, screens, etc. Don't the Congress and the public have a right to assess the adequacy of the handling of the screens in DOJ?

[John Steele]

[[This is Richard Painter's response, emailed to me.]]

My letter clearly states that the matter is the government's "effort to detain, interrogate, or try" the alleged terrorists who are part of the conspiracy. That is the matter from which recusal is appropriate.

This includes so called “policy” that direct relates to the government’s effort to detain, interrogate and try the alleged terrorists. As we saw from the terribly misguided “policy” on torture, policy can have a direct impact on how particular cases are conducted. Policy decisions also can have a direct impact on the lawyer’s former client in the same matter in which they were previously represented.

This has nothing to do with other antiterrorism measures such as for example airport security, money laundering, electronic eavesdropping, etc. There are thus plenty of other things for these lawyers to do.

The government itself has taken the position that information learned from interrogating one suspect can be used against another. The government itself has alleged that many of these detainees are acting in concert. The government itself has defined the "matter" broadly and should be held to that definition when it recruits lawyers who have represented defendants in the same matter.

These are criminal cases, some death penalty cases, where the government has already been accused of obstructing the right to counsel and using torture to obtain confessions. The government should not complicate matters further with actual or apparent conflicts of interest.

I also do not suggest that bar disciplinary rules would necessarily bar the representation of the government in these cases. Bar disciplinary rules in this area are unacceptably vague. I do believe, however, that the Attorney General should exercise discretion and ask these lawyers to do something else.

This also has nothing to do with the lawyers’ loyalty to their Country. The suggestion that they are unpatriotic is not even worthy of a response.

Richard W. Painter

[stephen.gillers@nyu.edu]

I agree that one case can be connected to another case factually, but Richard is connecting all terrorism cases to all other terrorism cases using the category of the case alone.

And also using the category alone, he would forbid lawyers who represented a single Gitmo detainee in habeas -- who claimed for example that there was no evidence to hold him -- from participating in making policy regarding Gitmo detainees.

So a lawyer who represented a Gitmo detainee on such a matter could not participate in deciding the conditions of confinement at Gitmo. Or in deciding the government's policy on repatriation generally. Or in deciding whether another detainee's treatment was a violation of the convention against torture.

Richard's argument depends on the claim that the government has asserted "acting in concert" to connect all detainees. Has the government really asserted that all detainees were acting in concert, wherever captured, under all circumstances? I don't think so, yet it is the acting in concert "glue" that Richard cites for his conclusions. That seems to be to cast the net way too broadly.

And even if every detainee was acting in concert with every other detainee, Richard's conclusion would still seem way too broad.

[Richard W. Painter]

Assume a partner in a law firm represents pro bono a Gitmo detainee in alleging that his detention is unlawful, that he is entitled to a civilian trial instead of a military tribunal, and that interrogation methods used against him and against others to obtain evidence against him are illegal under domestic and international law Assume the partner asks an associate to help with the representation and the associate does so even though he has Federalist Society is all over his resume. The associate eventually takes over the representation of the detainee while the partner devotes most of his time to billable matters.

We have no idea what information the associate has learned from the detainee or from other lawyers representing the detainee.

Assume it is 2013 or 2017 and the associate gets a job with the incoming Palin-Addington administration under Attorney General Yoo.

From which of the following matters is the new Justice Department lawyer disqualified:

1. Advising DOJ about “broad policy” questions on permissible interrogation methods to be used against detainees (his former client is still in US custody and has not yet been tried for any crimes)
2. Advising DOJ about the substantive questions that can legally be asked of detainees. It is difficult to know whether the answers to such questions could implicate the lawyer’s former client without more information about the alleged and actual activities of the former client. To the extent the lawyer knows such information, it is privileged. The Department of Justice ethics lawyer certainly has no business asking about such information.
3. Advising DOJ about whether civilian trials or military tribunals should be used to try detainees. .
4. Advising DOJ about repatriation of detainees to countries where “harsh interrogation” methods will be used,
5. Advising DOJ about “plea bargaining” arrangements where the government will go easy on some detainees in order to obtain information about others.

I would say “no” to all of the above. Whether or not ethics rules would subject the lawyer to discipline for representing the United States in these matters, the Attorney General should ask another lawyer to do these assignments.

Richard W. Painter

[Wick R. Chambers]

Richard wrote: "The government has stated that most of these people are acting in concert, and that information obtained from interrogating one detainee has led to the apprehension of others. In these circumstances, recusal from the entire matter is required." Is this a situation in which the only relevant fact is what the government has stated? If it is, does it matter for purposes of a conflict analysis that the government has by its conduct waived the conflict of interest? Assume the client who the present DOJ lawyer formerly represented has been released, or declared not guilty or has died, would there still be a conflict? I don't have much experience thinking about conflicts of interest in the abstract based on generalizations and assumptions, but it concerns me that a conflicts analysis could turn solely on "what the government said." Even though the discussion is on a level I have little experience with it's an interesting discussion.

[Stephen R. Diamond]

"Richard's argument depends on the claim that the government has asserted 'acting in concert' to connect all detainees. Has the government really asserted that all detainees were acting in concert, wherever captured, under all circumstances?"

YES. The government's well-known theory is that international terrorism is openly directed by al Qaeda; hence, all the terrorists are co-conspirators. (Reducing "all" to "most" doesn't change the conclusion because the likelihood of relationship is high.)

"Is this a situation in which the only relevant fact is what the government has stated?"

YES, since it expresses the government's theory of the case; the United States can't ethically hold and prosecute the detainees as co-conspirators while refusing to apply the ethical principles co-conspirators are due.

[Richard W. Painter]

The questions I asked above and my answers explained (briefly).

From which of the following matters is the new Justice Department lawyer disqualified:

1. Advising DOJ about “broad policy” questions on permissible interrogation methods to be used against detainees (his former client is still in US custody and has not yet been tried for any crimes)
2. Advising DOJ about the substantive questions that can legally be asked of detainees. It is difficult to know whether the answers to such questions could implicate the lawyer’s former client without more information about the alleged and actual activities of the former client. To the extent the lawyer knows such information, it is privileged. The Department of Justice ethics lawyer certainly has no business asking about such information.
3. Advising DOJ about whether civilian trials or military tribunals should be used to try detainees. .
4. Advising DOJ about repatriation of detainees to countries where “harsh interrogation” methods will be used,
5. Advising DOJ about “plea bargaining” arrangements where the government will go easy on some detainees in order to obtain information about others.

The best answer is “no” to all of the above. Whether or not ethics rules would subject the lawyer to discipline for representing the United States in these matters, the Attorney General should ask another lawyer to do these assignments. The first assignment could lead to harsh interrogation methods bordering on torture being used against the former client, depending on the substance of the advice given to DOJ. The lawyer might or might not know from the client or from the client’s other lawyers what types of interrogation methods are likely to make him talk. What the lawyer does in fact know is something the DOJ cannot find out in its conflicts review because it is subject to the attorney-client privilege. The second assignment is also problematic because the entire point of interrogations is usually to get more information about the alleged conspiracy and other coconspirators. This could include information that could be used against the lawyer’s former client. Once again, how close the former client’s activities were to the activities of other detainees is a matter about which the lawyer may have information from the prior representation. If the former client was in fact innocent, the likelihood of his being implicated in the interrogation is slim. If not, the chances of implication are greater. Once again, information about what the lawyer knows cannot ethically be made available to DOJ for its conflict review. The third and fourth assignments are so called broad policy matters that could have a direct impact on the former client. Once again confidential information learned from the former client or his other lawyers could be relevant, for example if the detainee had asked his lawyers not to take steps that would cause the government to repatriate him to a country where he would be required to talk under threat of torture. For the lawyer to then advise DOJ to repatriate detainees to that particular country would be a breach of loyalty to the former client and an abuse of confidential communications. Casting the advice to DOJ as “broad policy advice” does not make the situation any better. The fifth assignment, like the second, involves pressuring other detainees to disclose information about their alleged co-conspirators, including the lawyer’s former client. From confidential communications with the former client, the lawyer may know which detainees are more likely to implicate the former client and which are not, and thus which cases to stay away from, but this information is unavailable to DOJ for purposes of its conflicts review.

The consequences of conflicts from any of these assignments could be severe, not only for the former client but for DOJ. If, for example, the lawyer advised DOJ on interrogation, detention, repatriation or trial of a detainee who then provided information to the government implicating the former client, the government’s use of this information to convict the former client would be questionable. The issue would likely be raised on appeal if a conviction were obtained. The lawyer might try to mitigate concerns about disloyalty to the former client by giving DOJ substantive advice that is least likely to be harmful to the former client, but even the appearance that the lawyer is handling the conflict in this manner would play into the hands of critics who claim lawyers who represented detainees are not loyal to their Country. All of these difficulties can be avoided if the lawyer simply does not take the assignments to begin with.

[Wick R. Chambers]

The government's theories about terrorism may be well known but they are not always right. On occasion they have proved spectacularly wrong. What if the government's theory of the relationship among people designated as enemy combatants - designations that have proven on occasion to lack a factual foundation - change from one administration to another?

Richard has raised interesting, serious questions the answers to which depend, as best I can tell, on facts that are not readily available.

Does anyone know if current counsel for any of the detainees have raised the conflicts question? Should it matter if none have?

[Stephen R. Diamond]

The equitable principle binding a party to its previous theories is judicial estoppel: it's fair that the government suffer the limitations of a theory it has previously relied on to the detriment of defendants. The defendants shouldn't shoulder the burdens of a change of administration, but in fact, the present administration hasn't dumped the al-Qaeda theory.

[John Steele]

[[ Please note! This comment is by Richard Painter, who was having technical difficulties and asked me to post it.]]

Here is my take on what the ethics rules require. These rules relate to the attorney’s conduct and not the separate issue of whether the government exercises good judgment in assigning the attorney to a particular task. Even if the rules allow the attorney to work on a matter,, or arguably do, the client has discretion and the government should use this discretion wisely.

Incoming government lawyers are governed by MR 1.11(d):
(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee:
(1) is subject to Rules 1.7 and 1.9; and
(2) shall not:
(i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing.
….
(e) As used in this Rule, the term "matter" includes:
(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties, and
(2) any other matter covered by the conflict of interest rules of the appropriate government agency.
Rule 1.7, governing concurrent conflicts of interest, and Rule 1.9 governing successive conflicts, are applicable to all lawyers. Rule 1.9, which applies to conflicts arising from former clients provides:
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter;
unless the former client gives informed consent, confirmed in writing.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
In sum, the incoming government lawyer is subject to both the ban on successive adverse representations in the same matter or substantially related matters that applies to all lawyers in Rule 1.9, as well as a ban on successive representations – whether or not adverse – in the same matter that applies to government lawyers in particular in Rule 1.11(b)(2). Rule 1,9 is broader in covering substantially related matters, but defines a conflict only when there is adversity to the interests of the former client, whereas Rule 1.11(b)(2) is narrower in covering only the same matter but defines a conflict whether or not there is adversity between the government and the former client. Informed consent from the former client is required to address the conflict in Rule 1.9, whereas consent from the government is required in Rule 1.11(b)(2).

Clearly, in the representation of detainees suspected or terrorism, there is likely to be adversity between the former client and the government, particularly if the detainee has not yet been released from custody or if the detainee has been released and is still subject to a government investigation. Rule 1.9 thus would bar the incoming government lawyer from representing the government in the same or a substantially related matter.

The representation of the government in a particular terrorism case involving other detainees suspected of acting in concert with the former client or with other persons acting in concert with the former client is arguably the same matter as the representation of the former client. The government has alleged they were acting in concert and should be bound by that characterization Even if it is not the same matter it is highly likely to be a substantially related matter.

The more difficult issue is whether so called “policy” issues such as interrogation, repatriation, location and type of trial, etc, are a “matter” at all covered by the rule.
Generally, all of these rules are limited to matters involving specific parties, whether the same matter or substantially related matters, but they do not extend to broad policy matters. Regulations applicable to an entire industry, for example, are not matters involving specific parties and would not be covered. A lawyer thus could defend a Rule 10b-5 securities case for a client (a specific party matter) and then go into the SEC and work on interpreting or revising the same Rule (not a specific party matter). A lawyer could represent a client in a federal criminal case and lose, then join the Bureau of Prisons and draft regulations applicable to all federal prisoners including his former client.

There are some generally applicable policy aspects of the war on terror that likewise are not covered by these rules. Decisions about where to commence combat operations to look for terrorists might be one of then. Decisions about homeland security and issues such as racial profiling might be another. These decisions might have an adverse impact on a former client who was or is a detainee, particularly if they lead to apprehension of coconspirators, but these matters are not particular party matters and are not covered by the rule.

When, however, only a few thousand persons are detained by the government, and the government alleges that they are conspiring with each other or with the same other persons not yet apprehended, issues involving the detention, interrogation, and trial of these persons are difficult to characterize as general policy matters rather than particular party matters. Detention conditions unique to these detainees, interrogation practices directed at these detainees but not at other federal prisoners, trials specially designed for these detainees as opposed to federal defendants generally, are particular party matters. They may be the same particular party matter or a collection of substantially related party maters, but they are best characterized as particular party matters nonetheless.

I acknowledge that there is some ambiguity here, and the line between broad policy and particular party matters is not precise. For this reason, a government lawyer who participated in such matters after representing a detainee might or might not be subject to discipline and the government might or might not be vulnerable to having a conviction overturned because of the successive representation.

Ethics rules of course differ from state to state (the ABA Model Rules only reflect the ABA’s view of what state rules should look like, not necessarily what they are). There will thus be no uniform approach to conflicts issues among government lawyers.

Finally, there is the issue of client consent, which I do not believe works in this context. Although there is a provision for informed client consent in Rule 1.9, it is not likely to be of use in this situation. For the government to obtain “consent” from someone in its custody, particularly under these circumstances where duress has already been alleged to have been used against detainees, would be highly improper. A Justice Department lawyer going to seek permission from one detainee to work for the government on cases involving other detainees is also highly unlikely to withstand public or Congressional scrutiny.

I sum, the rules are ambiguous, depending upon what is and is not a “matter” covered by the rules. In this circumstance the government should use discretion and ask for recusal.