Legal Ethics: A Debate

Legal Ethics: A Debate

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Readers of this book and of the documents printed in the earlier volume have abundant information with which to evaluate my contribution and Jeffrey K. Shapiro’s response. This audience does not need to be led through the texts. But Mr. Shapiro says several things that deserve reply, the better to facilitate independent judgment. I will limit my comments to those matters. Mr. Shapiro claims that the Office of Legal Counsel (OLC) memoranda of January 9 and 22 answered the question the client posed. They did their job. He argues that the question posed did not ask the authors to address the Torture Convention or Statute. He quotes as proof the “second sentence” of the memoranda. The first sentence of each memo is also relevant: “You have asked our Office’s views concerning the effect of international treaties and federal law on the treatment of individuals detained by the U.S. Armed Forces during the conflict in Afghanistan.” Mr. Shapiro’s point seems to be that the second sentence, beginning “In particular,” limits the scope of the inquiry to the Geneva Conventions and the OLC had no responsibility to go beyond them or to explain the perceived limitation. Of course, both sentences were written by the authors of the memoranda. We do not (yet) have the text of the client’s original request. But taking these sentences as the full scope of the request, I reject Mr. Shapiro’s effort to defend the omission of the Torture Convention and the Torture Statute in the way he does. First, the initial sentence does refer to “international treaties and federal laws,” which encompass the documents not mentioned or discussed. At the very least, then, the authors should have made it clear that they were ignoring the broader language in the first sentence so the client was put on notice. Second, a client’s interest in a legal document “in particular” does not limit the lawyer’s responsibility to respond fully to the client’s broader, stated request. It means only that within the broader request, the client has a “particular” interest. Certainly, the authors should have entertained that possibility. Instead, the authors narrowly interpreted what is at best an ambiguity—was the “In particular” sentence meant to be restrictive or only to identify one concern “in particular?”—without telling the client how they had decided to resolve the purported ambiguity. Third, even if the client had specifically limited its request to the Geneva Conventions by name, it would still have been irresponsible to fail to address the Torture Convention and Statute, or at least to identify their existence and say that they were not addressed. It is the duty of the lawyer to recognize relevant sources of law, not the client. If a client asked whether a particular issue of stock “violated the Securities and Exchange Act of 1934,” surely we would expect the lawyer, in answering that question, either to address the legality of the issue under the 1933 Securities Act if relevant, or at the very least to make it clear that he or she was not doing so. Lawyers have been successfully sued for such mundane omissions as the failure to tell a client who identifies his need as “workers compensation” that he also has a tort claim arising from the same incident. Here, the duty to reference other sources of relevant law was particularly high because the two memoranda concluded that detainees did not enjoy any protection from torture under Geneva. A reasonable—and I suggest an inevitable—reading of the January memoranda was that the detainees existed outside of all legal protection. But as the Justice Department later acknowledged on August 1, after more than six months had elapsed, other sources of law did protect them, if barely. (More than two years later, the Justice Department disowned the August 1 memo as insufficiently protective of detainees.)

Source Publication

The Torture Debate in America

Source Editors/Authors

Karen J. Greenberg

Publication Date

2006

Legal Ethics: A Debate

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