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May 27, 2011


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Patrick S. O'Donnell

Re: “In a few brief minutes at the end of the session, he sketched a view that would give government lawyers more freedom than private lawyers because, as representatives of the government, they don’t have to worry about the state-legitimating function that they do in private representation.”

This surely cries out for clarification. The so-called “adversary system excuse” (where ‘system’ is specifically in reference to the structure of adjudication and not the ‘lawyer-client’ relation generally) of adjudication rightly accords more freedom, if you will, to criminal defense lawyers than say, either transactional lawyers or government lawyers, owing to the lawyer’s location between the defendant and the State. Ethically speaking, we can find several compelling arguments for “zealous advocacy” that countenance this freedom in a way not suitable for other kinds of lawyering.

Transactional lawyers are of course constrained by the needs and wishes of their clients. And in her role as an “advisor” she is further constrained by an obligation of “impartiality” different in degree if not king from that found among a lawyer engaged in zealous advocacy (where “don’t ask, don’t tell” is frequently invoked). The obligation of impartiality implicates the transactional lawyer in a “gatekeeper” role when the client desires to do something that is clearly wrong or illegal: in David Luban’s words, this means the advisor’s role “requires moral toughness to maintain independence and candor” (in spite of all the pressures, psychological and otherwise, to completely align the lawyer's views with their client's interests, whatever those may be).

Government lawyers in some respects do (or at least should) have more freedom than transactional lawyers (and less than those engaged in ‘zealous advocacy’) insofar as they are not tailoring their advice simply to fulfill the government’s political or policy objectives, hence, as Luban has well argued, their standards of candor and independence are fairly stringent. Luban uses the Office of Legal Counsel to exemplify these standards, given its “quasi-judicial” character vis-à-vis the Executive branch, including the constitutional obligation “to take care the laws be faithfully executed.” Alas, the “torture lawyers” in the previous Administration crafted legal memos closer in type to those of the transactional model and the lawyer’s brief, egregiously failing to meet the standards of candor and independence and corresponding constitutional obligation.

If this account, which is beholden to David Luban (at least as I’ve understood him), is fairly accurate, government lawyers DO have a part to play in democratic “legitimation” in the widest sense, for their failure to meet the aforementioned standards and constitutional obligation can directly contribute to the de-legitimization of a democratic State and its methods of governance.

As to government lawyers during the Third Reich, I think Luban is on the right track in arguing that we need to re-think our notions of individual moral accountability or responsibility and legal culpability in large organizations generally: the State, corporations, and bureaucracy, for instance. Luban wants to accord prime of place to notions of “complicity”* and “willful ignorance” by way more properly apportioning individual responsibility in such an organizational context. I think he’s on the right track here, and I would complement or supplement his work with that of Larry May and others working on notions of shared intentions and collective responsibility.

*At once place Luban mentions Christopher Kutz’ important book, Complicity: Ethics and Law for a Collective Age (2000), which is a nice place to start.

Patrick S. O'Donnell

erratum (third para.): "if not kind..."

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