The Propriety of CYA Letters

I’m going to speak at an APRL conference on the proper nature and scope of CYA letters, and want to take it out of the context of the OLC lawyers and the emotion-charged context of the torture memos.  Towards that end, the following is one of several situations in which I have given such letters.  I’d appreciate others’ views on whether such letters should ever be sent and, if so, under what restrictions.

In 1971, the Nixon administration arrested 13,000 people, virtually all of whom had come to DC to peacefully protest the Vietnam War.  I was in charge of ACLU’s litigation effort on their behalf.

One group of clients consisted of 2400 people who had been arrested for disorderly conduct, but with no probably cause and with no record made by the arresting officers of the circumstances of the arrests.  (In fact, one of the group was a White House secretary who had been arrested while walking to work.)  The arrestees were required to post collateral and given court dates for trials.  Many did not appear because they had come from distant places.  In those cases, the government moved the court to forfeit their collateral and enter a conviction.  Whenever a defendant did appear, however, he or she was met at the courtroom door by a prosecutor who gave the defendant a green card indicating that the case had been dismissed and informing them how to get their collateral refunded.

In a class action on behalf of the 2400 arrestees, I got a ruling from the U.S. Court of Appeals for the D.C. Circuit enjoining the government from further prosecutions and expunging the arrest records.

Thereafter, with reference to the MayDay “arrests,” some members of the class asked me whether they had to answer yes if asked on job, graduate school, or bar applications whether they had ever been arrested.  I told them that, in my opinion, they could properly answer no.  (For those too young to recall, there were people who would be strongly hostile to anti-war demonstrators, peaceable or not; think Swift Boat attacks on John Kerry.)  However, I cautioned them that a letter to that effect from me would not be an immunity bath, although it would at least provide evidence of their good faith if they were ever challenged on the issue.  I also pointed out that a lie on an application might well be considered a more serious matter than the fact of an arrest, and that someone else might disagree with me regarding whether they had lied.  In those cases in which people requested the letter (all such cases, as I recall), I wrote it for them.  However, I did not include my cautions in the letters.  I simply stated the facts and my opinion.

Was there anything improper in such letters in those circumstances?

Comments

[Andrew Perlman]

Interesting question, Monroe. Was there any legal basis for your conclusion that your clients had not actually been "arrested?" Implicit in your description is that there was no such legal basis, but that you simply objected to the social significance of the arrests and wanted to give your clients an out from having to report the arrests.

If that's what you were doing, I think it was ethically improper under Rule 1.2(d) (using modern numbering), because you were giving legal advice that you knew was incorrect. If you had a legal basis for your conclusion, the answer would be different.

*If* you wrote the letters without a reasonable legal basis for doing so, your conduct seems analytically similar to John Yoo's alleged conduct. That is, you both would have written CYA letters in order to enable your clients to engage in conduct that you knew or should have known was not supportable as a matter of law. And in both instances, the justification for doing so was your own moral beliefs about what the answer should be under those circumstances.

Given the comment at the beginning of your post, I assume that you intended to create the analogy. And if that was your intention, I think you succeeded.

As an ethical matter, the primary difference between your case and the OLC controversy is that you appeared to know that your advice was not supportable as a matter of law. In contrast, John Yoo appears not to have had such a subjective belief. Rather, he appears to have honestly believed that his advice was consistent with the law. In that case, your conduct may even be more ethically problematic than John Yoo's. I know you like provocative comments, Monroe, so I've teed one up for you!

[Andrew Perlman]

P.S. Just to be clear, my comments assume that you did not, in fact, have a reasonable basis for giving that advice. I can't tell what the legal significance was (or is) of the expunging of arrest records. If expunging the arrest records means that the arrests are considered not to have occurred (or the point is debatable), your advice seems to me to be legally and ethically proper.

[Stephen R. Diamond]

You're should be lauded for avoiding the (un)lawyerly weaseling (http://tinyurl.com/yhr8c8s), which would have served only to cover _your_ ass. Your CYA letter was of the memorialization type, a form ethical because—unlike John Yoo's memo—truthful. The equivocal caveat in your direct advice amounts to advice about using the advice; placing this "meta-advice" in the letter leads a third-party reader to read the qualification into the advice itself.

I discuss the Yoo memo as CYA letter here: http://tinyurl.com/ygym6mv

[Brad Wendel]

I'm with Andy on this one. It all depends on whether, after researching the applicable law, deliberating about it, and perhaps consulting with others, you determined that the law permitted the protesters to answer "no" truthfully to the arrest question (given the court's order to expunge the records). If the law permits that, then I don't see why we give the advice the pejorative name of CYA -- it's simply legal advice, given in good faith. If, on the other hand, the law did not permit that answer, then the letter was a bogus attempt to create an advice-of-counsel defense if the client was subsequently charged, and thus improper. (At the risk of returning to the OLC torture memos controversy, Jack Goldsmith thinks that's exactly what was going on with the memos: The CIA wanted a "golden shield" in the event that any of its agents were ever prosecuted for war crimes.)

[Monroe Freedman]

Andy and Brad,

The research I had done was enough to persuade a very conservative court (2 of the 3) to decide unanimously that the Younger v. Harris test had been met. (The lawyers originally assigned the issue had decided that it would be a waste of time to pursue the case in view of Younger.) That is, the court had held that the prosecutions were being brought in bad faith and with no hope of a valid conviction. They also were satisfied that the arrests had been without justification, which was the reason for the expungement.

But assume I had not done any research, but had based my letter only on the USAppCt decision and the facts. (An additional fact is that the police had violated their own regulations for recording arrests in a mass arrest situation.) Would that have been improper?

Assume a jurisdiction in which a citizen's arrest is lawful. If I walked up to you and said, "I hereby arrest you for the crime of mopery." -- Would you thereafter be obligated to answer yes if asked whether you had ever been arrested?

[Stephen R. Diamond]

Brad & Andrew, I think you're missing the point of this exercise. Everybody agrees that bad-faith or incompetent advice is ethically culpable. Obviously, Monroe's *direct* advice was sincere and competent, but the only difference between the direct-advice's content and the letter was that the letter omitted the disclaimers. 1) Does any duty of truthfulness require that the attorney not exaggerate his degree of certainty? 2) Did omitting the disclaimers exaggerate the strength of Monroe's beliefs—overstate Monroe's subjective probabilities?

Those are the issues Monroe's facts present. To the first, my answer is yes: Rules 4.1 (truthfulness with third parties) and 8.4 (general honesty)require, on their face, that attorneys not write CYA letters that mislead regarding the attorney's legal certainty. To the second, no, Monroe's omitted disclaimers omitted the sort of disclaimers that might accompany any legal advice; they carried no further limitations on the advice itself that a third party needs to know.

[Andrew Perlman]

Monroe,

When a court orders an arrest record to be expunged for the reasons that you cite above, does that mean that the arrests are considered not to have happened? Perhaps that's what it means, but that's not entirely clear from what you have said.

When you ask me to assume for the sake of argument that you had not done any research and that you were relying only on the US App. Court decision, I'm not entirely certain what you're asking me to assume. Are you asking me to assume that the arrest records had been expunged, but you had not researched the legal significance of the expunging? If so, I think you would be ill-advised to opine about the significance of an expunged arrest without researching it yourself. I think a lawyer giving such advice is opening herself up to a malpractice claim if she is wrong. And I also think it would be unethical under the particular facts of this case, if it turned out that there was no legal basis for giving that advice.

Regarding your last point, I think your gripe is with a system that allows employers to ask about arrests instead convictions. It's my understanding (which could be quite mistaken) that employers these days are more likely to ask about convictions and not arrests.

But assuming that I'm wrong, that doesn't justify giving advice to a client that you know to be false. Just because you don't like the way that employers behave doesn't give you the right to advise a client in a way that you know is contrary to the law. For example, if you know that there is clear legal authority that says that expunged arrests must be revealed when an employer asks about arrests, you can't give a client contrary advice just because you don't like the fact that employers are asking the question. That's clearly unethical, in my view, under Rule 1.2(d).

[Andrew Perlman]

Stephen,

Now I see your point. I didn't get the sense that Monroe was asking about the ethics of failing to sound a cautionary note in an opinion letter (i.e., stating something with a greater degree of certainty than perhaps is warranted). Monroe, can you clarify?

[Brad Wendel]

In response to Stephen Diamond, and generally in this debate about legal advising, here's my position. Start with an imaginary baseline case: Enron asks a law firm whether it is legally permissible to move a bunch of debt off its balance sheet, in order to protect its credit rating. There are accounting issues, of course, but assume that the question for the lawfirm is a straightforward legal one -- e.g. do they have to disclose the deals as a related-party transaction, or something like that. The firm says Enron can do it. Let's assume that the advice was objectively negligent -- it fails the ordinary tort reasonable care standard. (We can assume they screwedt this up because they were making a lot of money representing Enron, the CFO had threatened to take Enron's business elsewhere if they didn't play ball, and so on.)

Now assume that the company goes bankrupt and a bankruptcy trustee is considering claims *on behalf of the company* that can be raised against anyone who contributed to its failure. I take it there's no dispute that if the crummy legal advice by the firm contributed to the company's demise, the firm can be sued for negligence.

THAT is the standard I'm arguing for in all advising contexts, including government lawyering. It's merely a happenstance that there may be no effective remedy, in a given client vs. lawyer interaction, for the lawyer's negligence. In the government lawyer context, this may be because of immunity, separation of powers concerns, lack of political will of the subsequent administration, and so on. In the criminal prosecution context, it may be because showing causation requires showing actual innocence. For whatever reason, there may not be an effective civil remedy. But I don't see why the substantive standard for evaluating the legal advice is any different. (If anything, it should be heightened in the government context.)

As applied to Monroe's example, I tend to think the analysis given above is right -- the disclaimers we're talking about are the sort of pro forma cautions that are attached to every piece of legal advice ("you never know what some crazy court might do," etc.) and don't change the underlying substantive advice. Here the bottom line is, you don't have to report the convictions. That is an objectively well grounded statement about what the law permits or requires.

I would reserve the term CYA letters for somewhat different scenarios. My initial confusion, in an earlier post, came from thinking that Monroe was talking about something slightly different. My own understanding of a CYA letter is when you tell your client not to do something, but it's apparent that your client is going to do it anyway. Then you want a letter in the file to C your A in the event that your client acts against legal advice. That strikes me as perfectly permissible. A different kind of CYA letter, which is not permissible, is the "golden shield" sought by the government to use as the basis for an advice of counsel defense. Finally there's the ordinary third-party opinion letter, which subjects the lawyer potential liability for misrepresentation, and is therefore generally drafted with extreme care (and, as some have argued, so qualified as to be practically worthless).

What we're talking about here is different, but I think the most interesting case. This is legal advice offered as legal advice. There's too little attention paid in the disciplinary rules to this situation, particularly relative to its importance to real lawyers and to academic legal ethics.

[Monroe Freedman]

This discussion has been extremely useful to me, for purposes of both clarifying my thinking and explaining the issue that I am trying to explore.

First, I truly wanted to get away from the OLC matter, because I think there are some important and inadequately discussed issues involved in CYA letters in general. It appears that that’s not going to be possible in view of the topicality of the OLC matter and the strength of emotions about it. But I’m going to try nevertheless.

To define what I think of as a CYA letter, and what I have done by way of writing such a letter: A CYA letter is written when the client asks for advice, the lawyer gives the client the lawyer’s best objective opinion, but adds (as is the nature of virtually all legal advice) that there is always a possibility that some other lawyer, judge, or disciplinary counsel will disagree with the lawyer.

The client expresses an intent to follow the lawyer’s advice, and requests (or the lawyer simply offers) a letter embodying the advice. The hope is that, in the event the client is charged with wrongdoing, the letter might result in a finding that the client acted without bad intent, or might help to mitigate any punishment. However, the lawyer should caution the client about the limits of the effectiveness of such a letter, that is, that despite the lawyer’s honest opinion, and despite the letter, the client could nevertheless be found to have acted unlawfully or unethically and punished accordingly.

Such a letter typically relates the facts as the client has presented them, and says, “Based on those facts, in my opinion, you can lawfully (ethically) do the following....” My letters have always stated my honest legal opinion (I was tempted to add “of course,” but I prefer to think that’s unnecessary), but I have never included in such a letter the qualifications in my previous advice to the client about the contrary opinions that some other lawyer or judge might hold.

Also, the opinion that I give is always based on my understanding of the law based on the research that I consider to be necessary for competent representation. In the case of the MayDay demonstrations, I had already provided a U.S. Court of Appeals with factual and legal support that justified the holding that the arrests were illegal and that they should be expunged. That satisfied me that the “arrests” were a legal nullity and that those involved could properly answer no if asked whether they had ever been (lawfully) arrested. In that respect, my unanswered question about the citizen’s arrest for mopery is very much in point; surely, you can’t contend that an “arrest” didn’t happen.

Of course, as I had cautioned my clients, someone else might disagree with me. Indeed, if that weren’t the case, a CYA letter wouldn’t be necessary; the client could simply go ahead with no cares whatsoever. However, I expressed my honest opinion as my opinion, and I was prepared to back up that opinion with testimony or a brief if necessary.

But, let me say again, the letters that I have written have never expressed anything but my own honest opinion, expressed as my opinion, with no reference to the fact (previously stated to the client) that someone else might disagree with me.

If that clarifies it, what now do others think about CYA letters?

[Andrew Perlman]

Monroe,

If a lawyer communicates her own honest opinion of what the law is and if the lawyer's analysis and research were competent, there is nothing problematic about the letter. In fact, I think you're simply describing what lawyers do all the time, whether in writing or not: they advise clients about the law and the way that it is likely to be interpreted. If a letter of the sort you're describing is unethical, there is an awful lot of unethical conduct going on. Am I missing something that should trouble me?

Of course, the assumption is that your analysis is competent. For example, if there is clear legal authority that says that expunged arrests must still be reported to employers, your letter is unethical because it was incompetent, not because of the CYA nature of the letter.

[Andrew Perlman]

P.S. More directly to your last question, I don't see anything wrong with omitting conditional language of the sort that says, "Other people, courts, officials, etc., may not agree with me." That seems obvious, and although it may be advisable to state it explicitly in certain circumstances, I don't see why it would be unethical to omit such language in the vast majority of circumstances.

[Stephen Diamond]

I've posted my more considered opinion on CYA letters here: http://tinyurl.com/29gyal2

"The Inherent Untruthfulness of CYA Letters"

It contains a severe criticism of my position argued in this forum.