Legal ethics: A case study

In “The moral vanity of the dissociated left,” I discussed the controversy created by nine University of Minnesota Law School professors in connection with the invitation to University of St. Thomas Law School Professor Robert Delahunty to teach constitutional law at the University of Minnesota Law School for a semester in 2007. The nine professors more or less indicted Professor Delahunty as a war criminal unfit to teach for having co-authored with John Yoo the January 9, 2002 draft memorandum on the law applicable to al Qaeda and Taliban detainees captured in Afghanistan.

The nine professors didn’t know what they were talking about. The letter that each of them signed protesting Professor Delahunty’s engagement at the law school was farcical. The Federalist Society promptly sponsored a discussion of the Yoo-Delahunty draft memorandum. Each of the nine professors was invited to debate star University of Minnesota constitutional law professor (and my friend) Michael Stokes Paulsen on the legal merits of the memorandum.

The response of the nine professors was like Robert Benchley’s when asked by someone at Averill Harriman’s house to to say something funny. Benchley reported: “Drawing on my fine command of the English language, I said nothing.” None of the nine professors was willing to appear to debate Professor Paulsen on the merits of the Yoo-Delahunty draft memorandum, which Professor Paulsen, in his brilliant talk, described as the most sophisticated analysis extant of the issues it addresses and completely correct in its conclusions.

As a result of the moral and intellectual cowardice of the nasty nine, the University of Minnesota Law school students who filled the law school’s largest classroom to capacity for the Federalist Society event were deprived of the kind of debate and discussion that good students rightly seek in their law school education. Compensating for the lack of debate was the fact that we had the privilege of hearing Professor Paulsen speak twice as long as we otherwise would have. He is a gifted teacher, he knows what he’s talking about and he would have humiliated any one of the nasty nine who might have joined him to debate the issues.

The case of the nine professors was a bit of a trial run for the cowards among the government lawyers in the Department of Justice’s Office of Professional Responsibility (OPR) who appear to have leaked to the press parts of a confidential and classified draft report concerning the actions of Bush administration lawyers. The report calls for state bar associations to investigate, and perhaps discipline, attorneys who provided legal advice to the Bush’s administration concerning the legal limits of coercive interrogation methods against high-level al Qaeda terrorists.

“That advice was, of course, controversial,” Professor Paulsen writes in “Obama’s Injustice Department.” It is now, in the current political climate, highly unpopular in certain circles. OPR has determined, apparently, that it was “unethical” to give it and that the lawyers involved should be punished.

“How many things are wrong with this picture?” Professor Paulsen asks. From the perspective of legal ethics, constitutional law, and good government, he counts five big problems, saving best for last:

Incompetence about the underlying law: Constitutional law, in addition to legal ethics, is one of my areas of teaching and scholarship. In my opinion, the most basic problem with any suggestion of incompetence is that the memos’ essential legal conclusions are correct. There is a fundamental distinction in the law between what constitutes actual, legal “torture” under applicable standards and what may be harsh, aggressive, unpleasant interrogation tactics but not, legally, “torture.” Reasonable people will come to different conclusions as to where that line is, but the Bush administration’s lawyers’ conclusions are certainly defensible and, I think, ultimately correct. As a matter of constitutional law, moreover, the Bush administration memos’ most sweeping and categorical conclusion–that at all events no statute or treaty may limit the president’s sole constitutional powers as military commander in chief to direct and conduct the use of U.S. force–is in my opinion unquestionably correct.

This view is informed by my experience both as a law professor and, nearly two decades ago, as an attorney in the Office of Legal Counsel (OLC) of the Department of Justice–the same office that provided the advice in question during President George W. Bush’s administration. The types of constitutional and statutory arguments made in the disputed memos are consistent with longstanding OLC positions with respect to presidential power under Article II of the Constitution. They involve subtle niceties of constitutional law and history. OPR attorneys are, as a rule, not as conversant in such matters. To put the point in terms of legal ethics: Were the Office of Professional Responsibility to purport to pass judgment on the competence of the constitutional and statutory analysis of the OLC memos, it would be straying far beyond its areas of purported competence.

When I teach legal ethics, I tell my students that one aspect of competence is to know what you know and to know what you don’t know, and to stay away from the latter. It is fair to wonder whether staff attorneys in OPR–whose actions with respect even to the law of legal -ethics appear so dubious–possess the requisite professional skill, expertise, and knowledge to competently evaluate (let alone second-guess) OLC lawyers’ analysis of constitutional law, treaties, international law, and complicated criminal statutes. We will see: If OPR’s leaked report becomes public and indeed takes the Bush team to task on grounds of professional legal competence, it will be fair to ask whether OPR attorneys really understand the substantive law they are talking about–or whether the charge of incompetence falls more heavily on their own heads.

Summarizing the “five big problems” with the draft OPR draft report as described in the press leaks, Professor Paulsen concludes:

Unethical leaks and confidentiality violations; outsourcing federal responsibilities; basic misunderstandings of legal ethics principles; incompetent analysis of constitutional, international, treaty, and statutory law. What more could be wrong with an ethics office’s actions? It is hard to know for sure–without seeing OPR’s report–the full extent to which it contains all of these problems. But leaked accounts of the OPR’s draft report so far call that office’s ethics and professionalism into question more than they do those of anyone else.

Professor Paulsen has left the University of Minnesota Law School. He is now university chair and professor of law at the University of St. Thomas Law School in Minneapolis, where Professor Delahunty is also a member of the faculty. Professor Paulsen was an attorney-adviser in the Office of Legal Counsel from 1989-1991. If you read his Standard article on the leak of the OPR draft report, you will get a glimpse why the University of Minnesota Law School’s loss was the University of St. Thomas’s gain.

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