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.

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.

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.

In my current mundane life, this qualifies as wildly exciting.