Those Nine Lawyers at the Justice Department: On Constancy in the Noble Role of Counsel

What do John Yoo, Jay Bybee, and Ira Sorkin have in common?  The obvious answer is that they are all lawyers.  Another answer is that they have been all over the news.  One more layer is that they have been vilified because they represented widely unpopular clients. Mr. Yoo and Mr. Bybee offered the legal opinions on interrogation techniques during their years in the Justice Department. Mr. Sorkin represented Bernie Madoff.  Now, name just one of the lawyers currently serving in the Justice Department who has, in the past, represented clients housed in Gitmo.  You can’t, right?  In fact, we had a little trouble getting at the names of seven of them because their boss, Attorney General Holder, stood sullen and mute on requests for disclosure. Therein lies the real issue in the heated debated over these lawyers and their former pro bono work for Gitmo detainees.  The Barometer stands firm on the noble role of counsel for ALL clients.  The Barometer asks only that the nobility label apply to all counsel, regardless of the political ideology and/or conduct of their clients.

The challenge in any ethical dilemma, whether the issue is the role of counsel or whether to disclose the hairline crack in the engine block of the used car you are trying to sell, is that the ethical standard should be the same.  Of course you would want to know about the hairline crack, and commerce does click along a bit more neatly when we are transparent in our deals.  And if you want to preserve the ethical imperative of a right to counsel it means that you support that right regardless of your feelings about the client, the client’s actions, or your political ideology.  Those who cry foul know would have greater moral authority had they been as vocal in supporting, indeed perhaps not pursuing (dare the Barometer say, hounding?), Mr. Yoo and Mr. Bybee as they did their jobs as counsel for Mr. Bush.

There is yet another ethical issue here — whether those who have represented certain clients in the past should be barred from some counsel positions in the future.  The ethical principle underlying that question is that we are always prepared to accept the consequences of our acitons and decisions. Some decisions do preclude us from future activites.  No one disputes the right to counsel in ALL cases.  However, at issue is whether those who have represented individuals from organizations with, how shall we phrase it . .  active agendas?, can then function effectively on the other side.  In other words, can you serve as an advocate for curbing that agenda when you chose to help those advancing that agenda? 

There is a distinction between representing Bernie Madoff and representing a member of al Qaeda.  Bernie is a once-in-a-generation felon whose wrongs heaped misery on thousands. But Bernie’s Ponzi cause does not live on through disciples.  In fact, as in most of these situations, those who worked for Bernie were more than willing to throw him and others under the bus in exchange for a plea deal.  The crime scheme ends with Bernie.  New Ponzis will spring up, but not through the efforts of a Madoff syndicate.  A lawyer representing Bernie who takes on a role of prosecutor does not risk a conflict of interest in future Ponzi cases.  To paraphrase Tolstoy, all unhappy Ponzi schemes involve different players.  A lawyer who has represented Bernie learns about Ponzi schemes but has not gained confidential information about future plans.  That game ends. One could represent every bank robber in the country and still turn around and become a prosecutor without risking a conflict in prosecuting future bank robbers.  Bank robbers are neither unionized nor organized.  In fact, they may be the least “ept” of the underworld.  Their crimes are committed on video, with many of them not having the good sense to wear a mask.  The chances of an ongoing organizational effort among this crowd is about as likely as one of those “The Bachelor” marriages lasting.  

The same singular client quality does not exist for the nine lawyers currently serving on the law enforcement side of the table afters stints representing detainees.  The battle going forward involves a network, a syndicate, an ongoing effort to which their former clients and current detainees remain committed.  Indeed, it is clear that they remain in communication with each other.  Worse, we have at least one lawyer (Lynne Stewart)who helped her client (WTC 1993 bomber Sheik Omar Abdel-Rahman) communicate with others in the terrorist networks. What do these noble lawyers do when their role as prosecutor/government lawyer conflicts with the knowledge gained in their former defense work?  The Barometer does not judge these lawyers by the clients they represent.  The Barometer simply questions how these lawyers will resolve the ethical issues going forward in their new roles — Is it possible to serve in government positions that demand aggressive enforcement for the sake of national security once you have represented these detainees?  What will you do with that privileged information you hold should that information become critical in your new role? What if that client had disclosed something to you that is privileged but that would help in a current case?  Or, worse, what if the client told you something in confidence that becomes a critical piece of information in carrying out the nation’s war on terror?  What then, oh, noble counsel?  

The lawyers who have represented the detainees in their prior professional lives should be willing to acknowledge the potential conflicts without taking umbrage at those who raise the question.  It ain’t your clients we’re fretting over  — it’s your inability to see the issues in your new role and acknowledge yet another cornerstone of legal ethics:  You don’t represent a new client when it conflicts with the interests of a prior client.  Underlying that rule is a body of wisdom and years of legal experience.  Both teach us that when you undertake representation of a second client whose interests differ from those of a prior client that you will, inevitably,  end up in a situation that involves a tough question of whether to compromise client privilege.  For our nine lawyers, here’s a good question:  Would you compromise client privilege or would you rather compromise  national security?  Who would undertake such a risky role?  Well, we really don’t know because we have not heard much about them.