A Quick Legal Ethics Tutorial for "Experts" Who Say Torture Lawyers Should Not Face Bar Discipline

The Bars go after lawyers who sleep with their clients (and sometimes eventually marry them!), but they "can't" go after the lawyers who crafted, justified and blessed American torture policy?

* Jesselyn Radack's diary :: ::
*

What ethics rules were violated?

Very briefly, because I have to get to the infusion center, a lawyer has a different duty when acting as an advocate versus acting as an advisor.

The advocate is the traditional role we think of for lawyers. A lawyer can make any argument on behalf of a client, no matter how far-fetched, as long as it's not frivilous. The only time they have a duty to bring up opposing law is if the other side fails to do so and the judge is unaware of it. (ABA Model Rule 3.3 "Candor Toward the Tribunal").

When a lawyer is acting as an advisor, however,

a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice,m a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.

(ABA Model Rule 2.1 "Advisor").

The Office of Legal Counsel (OLC) lawyers were acting as advisors. As the Comment to the rule explains, they were obligated to render straightforward advice expressing the lawyer's honest assessment, even if that legal advice "involves unpleasant facts and alternatives that a client may be disinclined to confront. . . . lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client." Rule 2.1, Comment <1>.

The OLC Legal Advisors (that was their title) cannot give one-sided legal advice coiuched in narroiw terms, especially where practical considerations, "such as effects on other people," are dominant. Rule 2.1, Comment <2>.

It is proper for a lawyer-advisor "to refer to relevant moral and ethical considerations in giving advice." Rule 2.1, Comment <3>.

There are other legal ethics rules that are triggered, such as ABA Model Rule 1.13, which governs "Organization as Client." It states that if a lawyer for an organization knows that one of its constituents intends to act in a way that is a violation of law (e.g., would violate the anti-torture statute), then the lawyer shall rproceed as reasonably necessary in the best interest of the organization.

I can't live-blog this morning. I'm leaving for chemo. But the New York Times and Washington Post's "legal experts" can come to me if they need a tutorial on legal ethics.


(Reprinted with Jesselyn Radack's permission)

Forgot the link

http://www.dailykos.com/story/2009/5/7/71528/41045