The furor generated by the Liz Cheney ad – or rather the organization that Cheney run, Keep America Safe – is interesting to me. (Ad and story here)
Isn’t it all just a question of whether a current client should consent to a potential conflict with the interests of a former client? Or is it really something more?
By now, you’ve probably heard about this discussion (or rather shouting match). The organization produced an ad, demanding to know the identities of those current Justice Department lawyers who were hired by the Attorney General, are now engaged in formulating detainee policy (or prosecuting detainees), and who formerly represented alleged terrorists in custody. The furor has centered on the risk this ad has of demonizing (McCarthy-style) those who defend bad people:
The ad—in one frame, a headline refers to the DOJ as the “Department of Jihad”—has been denounced as McCarthyism by liberal critics. It’s also being condemned by a growing number of former George W. Bush administration lawyers. Ted Olson, who served as Bush’s solicitor general, says he has the “greatest respect” for lawyers who represented Gitmo clients; they were acting “consistent with the finest traditions of the legal profession,” he says. He calls the attacks on one of the targets, Deputy Solicitor General Neal Katyal, “outrageous.” Four years ago, Katyal represented Salim Ahmed Hamdan, Osama bin Laden’s former driver, in a landmark Supreme Court case that overturned the military tribunals that Bush created. (Katyal did a “marvelous job” on the case, says Olson.)
(links omitted)
I get that point. But I also get the importance of asking the question: does their prior representation of detainees impact the ability of these lawyers to carry out their duty in the Justice Department?
Setting aside the question of whether the ad itself is the most constructive way to raise this question, people have a right to ask the queston, right?
These lawyers are representing us today. Because their prior representation of the detainees could present a conflict isn’t the question merely one of an actual or potential conflict with a former client? If it is, shouldn’t it be disclosed and consented to by the lawyers’ clients? Or is the fact that they’re working for the government change the calculus?
It doesn’t work like that, I know. But raising the question is a way for a democratically-governed people to shed light on the potential conflict and, in a manner of speaking, consent to it. Is it not?
Setting aside whether there can really be a constructive dialogue over this or whether there is really a way to determine whether people consent to something like this, raising the question is not unreasonable it seems to me. Just as it’s not unreasonable to push back with concern asking the question at all (let alone in such a provocative fashion) would result in the demonization of those who have represented the accused.
Is it even possible to raise the point without unleashing the fury?
No related posts.
If I’m understanding your argument correctly, I don’t think any sort of potential conflict of interest will develop. Any of the former Gitmo detainee defenders will not (or perhaps should not) be working on any cases that they were on the defense team for. That’s a clear conflict of interest–so obvious that the DOJ can probably figure out what cases someone can or can’t work on pretty easily. Given that you have to expect that any and every Gitmo case is going before some sort of federal CoA, there’s a pretty strong incentive for self-regulation on the conflict of interest area.
Unrelated, but my prof actually said “Fight the hypo” today.
In my current mundane life, this qualifies as wildly exciting.
idwsj – anytime a professor says “fight the hypo” we deem it related to just about anything around here. Thanks for sharing!
Ricky-
I suspect you’re correct. My concern was more about the furor over the question being raised at all. Given my review last night of my PR outline, it’s a rather simple-minded question. But I thought it was interesting.
It’s unlikely a lawyer will actually be asked to prosecute a detainee he once defended. So in that sense there’s no conflict (or at least unlikely there would be one). But just as the prior lives of lobbyists-turned-government officials are scrutinized or criticized because of the bias they bring (or influence they’re susceptible to), so concerns about the bias of these lawyers in crafting policy should be considered when they are playing a role in crafting detainee and national security policy.
For the sake of simplicity, I’m going to refer to the Model Rules of Professional Conduct, though I recognize that the actual rules applicable in this situation may vary slightly.
Not only is it “unlikely a lawyer will actually be asked to prosecute a detainee he once defended,” it would be completely unethical for that lawyer to do so. That is a clear violation of MPRC 1.9(a), and that rule applies to government lawyers. MRPC 1.11(d)(1). That lawyer could only prosecute if the detainee gave informed consent, confirmed in writing. MRPC 1.9(a). And we all know that would be extremely unlikely to happen. Additionally, the lawyer could only be involved in that prosecution if the appropriate governmental agency also gave informed consent, confirmed in writing. MRPC 1.11(d)(2)(ii).
The Department of Justice is probably getting around this by arguing that the “matters” that these attorneys will be working on are not the same as or substantially related to the “matters” they were involved with in private practice. Absent substantial relation, there is no conflict of interest (for former clients). MRPC 1.9(a). I’m guessing DOJ will have these lawyers working on different prosecutions, which are different “matters.”
It’s important to remember, too, that even in these different matters, these lawyers cannot use the confidential information they obtained from their detainee clients, with some exceptions. MRPC 1.6. That could definitely come into play if these lawyers are involved in crafting policies.
Regarding the consent issue, as I understand government representation, these lawyers need not obtain consent from the American people because they do not represent the American people. They do not represent the whole of the United States government. Their client is the Department of Justice, or some subdivision thereof. Therefore, they need only obtain consent from the appropriate agent of that agency, and I’d bet that consent was given when these lawyers were hired.
Magnus-
There you go again… referring to the “law” as if it really matters or something.
What I had just glossed over in generality, the Model Rules makes the issue much clearer and more well defined. I would think it’s a given that these lawyers would not prosecute (or be involved in the prosecution of) the individuals they once defended, nor could they even if their government positions now called for it.
I had imagined the idea and process of “consent” in the Model Rules as analogous to democratic inquiry and electoral approval in a situation where the conflict influences policy choices and decisions. So the conflict isn’t a direct one with a former or current client. But more indirect in that the lawyers’ choice to seek out these detainees as pro bono clients and subsequent representation of them might be seen as a “conflict” between the interests of their former clients and the ability of these lawyers to craft sound national security policy.