An Ethics Lesson from the Bush Justice Department
LACBA Update, August 2009

By John W. Amberg, partner in the law firm of Bryan Cave LLP, and a member and former chair of LACBA’s Professional Responsibility and Ethics Committee. The opinions expressed are his own.

The torture memos written by Bush Administration lawyers and released by President Obama provide an object lesson in legal ethics. Although presumably none of the readers of this article will be asked to defend torture, the pressures that led government lawyers to misuse their legal skills and to traduce their professional values nevertheless have special resonance in a dismal economy that threatens the livelihood of many lawyers. When firms are laying off lawyers and cutting compensation, lawyers are under extreme pressure as never before to keep their clients happy, and this risks pushing them to take positions that are inconsistent with their professional duties under the State Bar Act, Business and Professions Code Sections 6000, et seq., and the Rules of Professional Conduct to act competently, to exercise independent judgment, and to obey the law. Understanding the torture memos reminds us of the ethical limits on all lawyers.

The torture of prisoners by U.S. forces burst into international consciousness with the publication of the Abu Ghraib photographs in April 2004. Though the graphic mistreatment was minimized as the actions of a few bad apples, and only low-level soldiers were punished, The Wall Street Journal and The Washington Post soon revealed the existence of an official policy supported by memos written in August 2002 and March 2003 by Jay S. Bybee and John C. Yoo, lawyers in the Justice Department’s Office of Legal Counsel. Bybee is now a judge on the Ninth Circuit Court of Appeals, and Yoo is a professor at Boalt Hall. Ironically, in light of the argument that efficacy should trump legality, the Orwellian-named “enhanced interrogation techniques” were derived from military training which taught that torture by the enemy produced unreliable results.1 When John McCain argued for strict limits on interrogation methods, he recalled his own false confession to war crimes under torture by his North Vietnamese captors.

The legality, not the effectiveness, of torture was ostensibly the OLC lawyers’ concern when they wrote their memos. Torture is prohibited by 18 U.S.C. Section 2340A, Common Article 3 of the Geneva Conventions, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the United States took the lead in drafting. Under CAT, there are “no circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency” that justify torture or other cruel, inhumane, or degrading treatment of prisoners. To circumvent this categorical prohibition, Bybee and Yoo crudely redefined torture. If the infliction of pain was not the “precise objective” but only a by-product, it was not prohibited. If mental suffering did not result in significant psychological harm “lasting for months or years,” it was not unlawful, although waterboarding, which quickly inflicts a terrifying sensation of drowning, had been prosecuted by the United States since 1901. The lawyers concocted an extreme definition of “severe pain” by cribbing language from a statute authorizing healthcare benefits that had no relationship to the torture statutes and did not even define the term. When Jack Goldsmith, a respected conservative Republican, replaced Bybee as head of OLC, he concluded the opinions were “legally flawed, tendentious in substance and tone, and overbroad” and withdrew them. In The Terror Presidency, Goldsmith asks, “How could [the] opinions reflect such bad judgment, be so poorly reasoned, and have such a terrible tone?” The answer is that the lawyers abdicated their duties of competence, independent judgment, and integrity due to fear and pressure. To OLC’s clients in the White House, Goldsmith writes, the legal reasoning was irrelevant; all that mattered was the lawyers’ approval for their actions.2

In an earlier, more innocent era, U.S. Supreme Court Justice Robert H. Jackson remarked that a government lawyer was more constrained than a private lawyer because he is a legal officer of the United States and is not “as free to advocate an untenable position because it happens to be his client’s position.” Today, advocating an untenable position can subject a lawyer to sanctions under Code of Civil Procedure Section 128.5 and Federal Rule of Civil Procedure 11. Furthermore, Business and Professions Code Section 6068 and the Rules of Professional Conduct make it clear that lawyers may not uncritically adopt their client’s position and simply do the client’s bidding without exercising professional duties of competence and independent judgment.3 The lawyer is more than merely the agent of the client—The lawyer is also an officer of the court and owes duties to the court and to the administration of justice. Thus, the lawyer must support the Constitution and the laws of the United States and California, maintain respect for the court and judicial officers, and counsel only those actions as appear legal or just.4 The lawyer shall not advise the violation of any law, rule, or ruling unless he or she believes in good faith that it is invalid.5 In deciding whether to challenge a law or rule, the lawyer’s the duty of competence comes into play. Rule 3-110(B) defines competence as diligence, learning and skill, and mental, emotional, and physical ability. It also implies the application of judgment and common sense.

Moreover, lawyers must employ independent judgment. They owe a duty of loyalty to their clients, but if the clients also do not receive the benefit of their independent and detached judgment, the lawyers are not fulfilling their duty as professionals. If they fail in this duty, they risk being disciplined, sanctioned, or sued. A lawyer’s advice should be straightforward and should express an honest assessment of the client’s situation even if the client does not want to hear it.6 It is easy to tell the client what the client wants to hear, as the OLC lawyers did, but lawyers must exercise learning and judgment to protect their clients, even if that means sometimes saying, “No.”

1 Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals (2008).

2 Jack L. Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (2007).

3 Cosenza v. Kramer, 152 Cal. App. 1100, 1102 (1984). (“An attorney...is not a hired gun required to carry out every direction given by the client.”)

4 Bus. & Prof. Code §6068(a), (b), (c).

5 Cal. R. of Prof’l Conduct R. 3-210.

6 Taylor v. Sentry Life Ins. Co., 729 F. 2d 652, 656 (9th Cir. 1984). (Lawyers have a duty to inform client that claim is unjustified.)