Selling indulgences.

Selling indulgences.

Selling indulgences.

The law, lawyers, and the court.
Feb. 14 2005 6:07 PM

Selling Indulgences

The unmistakable parallel between Lynne Stewart and the president's torture lawyers.

Adviser or accomplice?
Adviser or accomplice?

Lynne Stewart has been convicted of material support for terrorism in assisting her client, Egyptian Sheik Omar Abdel Rahman, now serving a life sentence for conspiring to commit acts of terrorism in New York City in the months after the 1993 World Trade Center bombings. If her conviction "stands for" any basic proposition, it's that there is no such thing as lawyer's immunity—either legal or moral (though many people, including myself, have sympathy with Stewart's fervent belief that she is morally blameless). Stewart, a lifelong radical, was on the same wavelength as her terrorist client in his desire to launch revolutionary struggle. She insists, however (and there's no reason to doubt her), that she never sympathized with his anti-Semitic or fascist agenda, and that she never sought to facilitate actual violence. The jury concluded she was deceiving herself and that she had crossed the line from zealous advocacy to criminal conduct.

Ironically, one could offer the same assessment for the "torture lawyers"—the cabal of attorneys advising the Bush administration on the legality of U.S. interrogation policies—including former White House counsel Alberto Gonzales, vice presidential counsel David Addington, Justice Department lawyers Jay Bybee and John Yoo, and Pentagon counsel William Haynes. For the Torture Lawyers, the political polarities are reversed, but their gut-level affinity with the client's politics is the same, as is their willingness to bend (or break) the law to make their client's wishes come true. The torture lawyers' protestations that they never sympathized with a pro-cruelty agenda, or with abuses like those at Abu Ghraib, sound very much like Stewart's defense. Both believe that being a lawyer conveys a certain moral immunity. Fortunately for us all, it doesn't.

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As I've learned from teaching professional responsibility for 25 years, the non-immunity message is a hard one for lawyers to understand and accept. After all, the most basic proposition about advocacy, endorsed by ABA Model Rule 1.2, is that lawyers should not be held accountable for their clients. The lawyer makes the client's arguments, not her own, and her job is to make them as persuasively as possible. In court, lawyers are allowed to make any argument that is not frivolous, and they may assert anything not positively known to be false. These rules permit lawyers to say a great deal that they themselves privately disbelieve or dislike—and, as zealous advocates, they often do.

Criminal defenders like Stewart embrace the role of fighting like hell for people they may know to be guilty. Some take this even further, believing that to fight like hell you must see the world through your client's eyes. With a client like Rahman—confined for life and forbidden to communicate with the outside world—building this personal rapport can involve bucking the rules the government lays down to limit your advocacy. Even though the ABA formally removed the "zealous advocacy" standard from its professional code, the ideal remains intact in the commentary to the rule—and, more important, it remains central to the folklore of the profession. Lawyers who will never set foot in a courtroom make "zealous advocacy" their mantra and accept the lawyer's moral immunity as an article of faith.

Even within this ethos, however, there are lines that may not be crossed: Model Rule 1.2(d) holds that, "A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent." The jury concluded that Stewart crossed that line—not just in terms of the ethical standard, but in terms of the federal statute prohibiting material support to terrorism as well. Business lawyers have occasionally found themselves convicted as accomplices for papering crooked deals. Wrongly supposing they were immune, they went down with their clients. Some who cross the line have sterling reputations, such as Michael Abbell, a State Department extradition scholar who went into private practice, only to represent the Cali drug cartel so aggressively that he was tried and convicted for money laundering.

Many of my legal-ethics colleagues think the torture lawyers crossed Rule 1.2(d)'s line regarding criminal conduct with their torture memoranda, but I don't agree. It's unlikely these lawyers knew they were facilitating illegal conduct. After all, the whole point of their elaborate sophisms was that the intended conduct was perfectly legal for U.S. soldiers and intelligence officers to engage in. Bad as their arguments were, the torture lawyers may have actually believed them—in which case they didn't "know" the conduct was criminal. Besides, the torture lawyers didn't tell President Bush what to do; they merely advised him on the legal consequences of an interrogation policy, should he choose to adopt it.

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However, Gonzales, Bybee, and their crew crossed a different ethical line. They were not acting as courtroom advocates but as legal advisers, with a different professional standard to which they needed to adhere. Model Rule 2.1, titled "Advisor," provides that "a lawyer shall exercise independent professional judgment and render candid advice." Legal advisers must play it straight, even where the "[l]egal advice [may] involve[] unpleasant facts and alternatives that a client may be disinclined to confront." Independence means saying what the law is—as mainstream lawyers and judges understand it—regardless of what the client wishes it to be. Candor requires lawyers with eccentric theories to warn their clients whenever their legal advice veers away from the mainstream. The torture lawyers betrayed both these principles with the advice they gave the White House.

In the "Bybee Memo," for example, candid advice demands that when you discuss the "necessity defense" to the crime of torture, you mention that the defense has always been a loser in federal court. In the case of a later OLC memo by now-Harvard law professor Jack Goldsmith on the Geneva Conventions, candor means forthrightly reminding your client that Geneva forbids coercive interrogations—not burying this unwelcome point in a vaguely worded footnote.

To be sure, no lawyer has ever been disciplined for violating the ethical rule on candid advice-giving. But that has nothing to do with the validity of the standard and everything to do with the secrecy that usually cloaks attorney-client advice. Clients are seldom in a position to know when their lawyer's advice has not been candid; aggrieved clients are more interested in obtaining malpractice damages than in filing grievances. And in the rare case when a lawyer's bad advice becomes an issue—for example, when a receiver takes over a bankrupt corporation and goes after the lawyers that colluded with the old management—there are almost always easier to prove and more serious charges to file.

But that doesn't mean that the "independent and candid advice" standard is unimportant. The entire theory of the attorney-client privilege rests on the notion that lawyers must be able to hear and keep their clients' secrets in order to offer good advice. Obviously, the privilege comes at a cost to truth, as when big-tobacco lawyers abused the privilege for decades to bury scientific studies on the addictiveness of smoking. For more than a century, critics have charged that the cost to society of the privilege is too great. The organized bar responds by insisting that the privilege actually enhances compliance with the law, rather than undermining it.

Confidentiality encourages lawyers to give their clients unvarnished advice—and, in the ABA's words, "almost all clients follow the advice given, and the law is upheld." But if the lawyer doesn't give independent, candid advice, this entire argument, and indeed the whole edifice of confidentiality, comes tumbling down.

But what happens when the client doesn't want candid advice? When the client says, in effect, "Give me a legal opinion saying I can do what I want to do"? Lawyers confront such requests every day—but if the lawyer does the client's bidding, she has crossed the fatal line from adviser to accomplice. No longer an adviser or advocate, the lawyer now becomes an absolver or indulgence-seller. There is some historical precedent here—Martin Luther launched the Reformation because early-Renaissance popes were selling papal dispensations to sin along with indulgences sparing sinners the flames of hell or a few years of purgatory. Rodrigo Borgia once arranged a papal dispensation for a French count to sleep with his own sister. It was a good career move: Borgia later became Pope Alexander VI, while Jay Bybee merely ended up on the Ninth Circuit Court of Appeals.

The important thing to note is that the role of absolver—unlike the roles of advocate or adviser—is totally illegitimate. The advocate is supposed to—in the words of the old ABA Code of Professional Responsibility—"resolve in favor of his client doubts as to the bounds of the law." The adviser, by contrast, owes the client independent and candid advice, even if it's "unpalatable to the client." The advocate's arguments follow only the permissive non-frivolity standard; the adviser must honor the more demanding candid, best-judgment standard. The advocate's biased presentation will get countered by the adversary in a public hearing. The adviser's presentation will not—and unless it's leaked, it will in fact be shielded by the attorney-client privilege. That's why it's disastrous when the adviser loopholes the law like an advocate. Conflating these two roles moves the lawyer out of the limited role-based immunity that advocates enjoy (although I think that the profession exaggerates the immunity there, too) and into the world of the indulgence-seller. Dante consigned the indulgence-selling popes to hell. Maybe Canto VII of the "Inferno" belongs as an appendix to the Rules of Professional Conduct.