Monday, March 8, 2010

75th Installment. The Torture Memos & the Tortured Legal Ethics Justifying "CYA Letters"

In this rare case where state-bar opponents might support a bar-establishment prosecution, the Office of Professional Responsibility (OPR)—a federal-government component of the bar establishment—evasively used the wrong Model Rule of Professional Responsibility, botching the job. University of California law professor John Yoo and 9th Circuit Court of Appeal Justice Jay Bybee are widely accused of conspiring to commit torture by deliberately distorting the law to deny that the CIA's waterboarding of suspected terrorists constitutes torture. The OPR can't make a case against war criminals Yoo and Bybee because it must avoid recognizing the reach of ethical principles that would prohibit institutional lawyers' common practice of drafting cya letters.

What's a cya letter?
On the Internet's Legal Ethics Forum, some ethicists didn't understand the concept of a cya letter. Here's a quotation that helps clarify the term:

The letter had made little impression on the reporters when it was introduced in the trial. It was written by von Bulow to the doctor who had treated Sunny for her first coma, in 1979, asking if Gailitis felt von Bulow had behaved in a negligent fashion when his wife was stricken. Prosecutor Famiglietti called it a "cover-your-ass letter" and asked the jurors in this summation whether a phone call to the doctor wouldn't have done as well as a formal letter. (
The prosecutor called von Bulow's letter a "cover-your-ass letter" because, despite the inefficiency of writing instead of phoning, von Bulow intended to make a record of concern for wife and capacity for remorse. The prosecutor's characterization impugns the value of von Bulow's letter as evidence for von Bulow's actual mental state.

A cya letter is one whose sole purpose is to rebut blame in advance. Sometimes a cya letter can achieve its purpose despite everyone's knowing it. When an attorney writes a letter declining a potential client's case, the memorialization effectively "covers the attorney's ass," were the client later to claim representation, although the client knows that the attorney is only regurgitating his own prior oral statements to protect himself.

Ethical issues long ignored by the state-bar establishment arise concerning cya letters in other circumstances, when others' knowing the motive for writing the letter defeats its purpose. As in the von Bulow case, where exposure defeated effectiveness, so in the matter of the torture memos: the effectiveness of a cya letter from the Justice Department's Office of Legal Counsel (OLC, which employed Yoo and Bybee) depends on successfully concealing from the real audience that the OLC authors cya letters on demand for the President. Yoo, Bybee, and both factions of the bar establishment, in academia and the Office of Professional Responsibility, were united—despite the serious division between the government- lawyer/defense wing of the establishment (Margolis, the Justice Department functionary who quashed the OPR's allegations of misconduct) and the prosecutorial wing (the OPR)—in one deceit: that Yoo was serving in an advisor role.

The Office of Professional Responsibility mischaracterized the roles of Yoo and Bybee as advisors to the executive branch

The OPR alleged that Yoo and Bybee violated two of the Model Rules of Professional Responsibility: rule 1.1, competent representation; and rule 2.1, candid, independent advice. The OPR ultimately invoked a standard distinct from either allegation: "duty to exercise independent legal judgment and render thorough, objective, and candid legal advice." The OPR used many of the dirty tricks for which the state-bar establishment is known, including the usual failures to cooperate with discovery requests for exculpatory evidence, but most significantly, the OPR smuggled the term "objective" into the standard without explanation. The real reason for changing the standard: the OPR couldn't prevail based on lack of candor and independence because Yoo was known to hold an extreme view of executive prerogatives.

The OPR's legal analysis should have unpacked the distinct, even opposed, functions the Justice Department's Office of Legal Counsel merges to serve Presidential-responsibility dodging. While the OLC may offer advice, it also provides an imprimatur of legality for dubious executive acts. When the OLC serves this official clearing function, it is certifies the legality of the President's position rather than advising the President.

The OPR's mistaken choice of legal theory resulted from two influences, in unknown proportion: the bar establishment's evasion of the issues surrounding cya letters in general, on which members of the bar establishment are split and regarding which they agree to disagree; and the OPR's incompetence, shared with the rest of the bar establishment and expressed in its signature analytic shallowness. The memos were in the form of advice to the President; therefore, the OPR tacitly concluded, they are legally cognizable under the rules governing advisors; but, in its role of supplying independent legal sanction for the acts, the OPR's opinions are not, in substance, advice to client, and the lack of candor misinformed everyone but the executive branch. Yoo and Bybee's misconduct is covered by rule 4.1, prohibiting untruthfulness with third parties regarding material fact or law, and the general prohibition of dishonest conduct in rule 8.4. If those rules were the subject of the allegations, Brian Tamanaha's criticism of Yoo's "sincere extremist" argument would fully apply:

So yes, Yoo undoubtedly holds extreme views about executive power. But if we assume that Yoo is a competent lawyer—as there is every reason to believe—then he must have recognized at some level that his analysis distorted the law. This recognition, and the determination to issue the memos anyway, provides a basis to find that he recklessly (knowingly) distorted the law. (
John Yoo, too, mischaracterizes his role

Yoo joined the charade and accepted he was functioning as an advisor. The rule 2.1 exhortation to candor is an easy target considering Yoo's Presidential client. Yoo's client knew his views, selected Yoo as writer for that reason, and wasn't deceived or kept in the dark. The state-bar academic establishment defending the OPR argues without an apparent sense of amusement that Yoo's misconduct consisted in telling his client what he wanted to hear, but while yes-men don't embody the highest ethical ideals, the evidence tells that—his misdeeds more serious—Yoo was no yes man; it's said that if Yoo had been asked to draft a memo with the opposite point of view, he would have refused.

Yoo needed to provide a retrospective purpose for the memo that didn't require an "objective" account. If not legal advice and not a cya letter, what? Yoo's answer: "simply to determine whether the interrogation program could be legally justified." (Yoo's response, p. 21, But if that were the purpose, why shouldn't Yoo analyze conflicting opinions and acknowledge the minority status of his position? According to Yoo, "The audience for the memos was a sophisticated group of attorneys and policymakers who well understood that the questions were difficult and close, with moral, ethical, and political implications." (Yoo's response, p. 23.) A dogmatic and extreme analysis ignoring conflicting opinion and seemingly decisive opposing precedent (including death sentences for Japanese soldiers who had committed waterboarding), isn't what the audience described would want. Yoo misrepresents his cya letter's real audience, the public.

The rift in the bar establishment

The underlying dispute within the bar establishment is the same dispute as the Office of Professional Responsibility versus Margolis, the same dispute as the supporters of former Chief Trial Counsel Drexel in California's State Bar versus the Board of Governors, which removed Drexel. On the Legal Ethics Forum, Brad Wendel, Rob Vischer, David Luban, and Scott Horton represent the academic state-bar prosecutorial establishment, which espouses an officer-of-the-court jurisprudence. Horton, through his opinion of Margolis, says what he thinks of the government lawyer/defense wing of the bar:

[Margolis] has no real engagement in terms of partisan politics. He represents a culture of craven clientalism in which lawyers are not the champions of the law but instruments in the hands of their employers, dedicated to getting them the results they want. Margolis is prepared to do the bidding of his master, whether his name is Alberto Gonzales or Eric Holder. (
Horton's ideology sounds elevated when run against institutional attorneys, but the outrage concerning obsequiousness serves as device to deride the entire agency concept of representation.

On the side of the state-bar-defense/government-lawyer wing, we find on the Legal Ethics Forum John Steele and Monroe Freedman, the latter showing the courage or the foolhardiness to propose a discussion of cya letters. Freedman admitted his own practice of writing these letters, in which attorneys claim to have an opinion that is other than their actual opinion or which conveys an unreal degree of conviction. Freedman points out that the ethicists have ignored the practice of writing cya letters. Without embracing the content of the torture memos or, for that matter, John Yoo's character, Freedman defends Yoo and Bybee from misconduct charges by acknowledging the torture memo was a cya letter:

Also, there is an assumption by some that Yoo or the OLC failed to give candid advice to the President. First, we do not know that to be the case. Private advice might have acknowledged weaknesses as well as strengths in the position. Second, we do not know that the President requested advice in the memo in question, as distinguished from a CYA memo (which lawyers frequently give to clients). (
Freedman's comments are refreshingly forthright but only to a degree. He doesn't define cya letter; if he did, he would have to confront that a successful letter written to "cover a client's ass" requires the lawyer's untruthful statements. Freedman would have to explain how cya letters avoid the strictures of Model Rules of Professional Conduct 4.1 and 8.4. 

The bar establishment can't agree to condemn deceitful apology for torture, not only because the bar capitulates to political pressure, but also because it dare not expose the untruthfulness corrupting ordinary law practice.

See also: "62nd Installment. Why Prof. John Yoo and Judge Jay Bybee won’t be disbarred" and "84th Installment. The inherent untruthfulness of CYA letters."


Sanpete said...

Very interesting topic, one I've been thinking about since Monroe Freedman raised it recently in regard to Yoo and Bybee, as you point out.

It hasn't been established that Yoo understood himself to be writing a CYA device. His memos do seem to fit that view, but it would be hard to show. It may be that the opinions were intended primarily as advice, but colored by CYA concerns, or as Margolis concludes, they were colored by Yoo's own strong views, or some of each.

The additional difficulty of proving the premise that the memos were intended as CYA devices is enough to explain why OPR didn't go there. Rules 1.1 and 2.1 were easier. Using Rules 4.1 and 8.4 would have required the same showing of knowingly giving bad advice that Margolis found against. Tamanaha's analysis, which argues Yoo must have been either incompetent or knowingly wrong when he made notable errors, doesn't take into account Margolis' finding that the errors Yoo made didn't rise to the level of incompetence under Rule 1.1 because they weren't serious enough or of the kind to prejudice the client's interest. So Yoo might have made errors without recognizing it at some level and without being incompetent under the rule. Margolis might agree that errors must either be mistakes showing some limit on competence or some knowledge of the error at some level, but neither has to rise to the level of misconduct under any rule.

You seem to think all CYA devices should be treated as misconduct because they're dishonest. I don't think a CYA device, as I understand it, needs to be dishonest to accomplish its purpose. It may help if it presents itself as neutral advice, which is a kind of dishonesty if it isn't neutral. But it need not claim to be neutral or impose on the expectations of others that it will be to have some CYA effect.

Even if Yoo's memos had begun, "You have asked me to give legal advice that fits as far as possible within the law your desire to do harsh interrogation, and which advice will help assure you won't be prosecuted for it as long as you remain within the law," it might have reduced the usefulness of the memos as CYA devices, and caused other problems, but it seems to me the memos would still have served as cover, as long as they were apparently written and received in good faith as a way to stay within the law. Some of the CYA aspects showing intent to stay within the law, and to not meet the elements of the legal definition of torture (particularly helpful because of the element of specific intent), would still remain.

A case where there's some reasonable expectation of neutral advice but where biased CYA advice would be proper as well, and where the latter is given without notice of what it is, would be more of a gray area, I suppose. OLC opinions arguably fall into that category (see Goldsmith's comments quoted by Margolis), though after introducing the idea, Margolis applies standards that would rule that out. It would be done at some potential cost to trust in OLC opinions. But I'm not sure it would amount to misconduct.

Maybe you would argue it should be misconduct, that, for example, lawyers should be required to be clear about any bias they're aware of in any presentation made in a context where such bias might not be expected. That would be a tricky rule. Margolis and others have indicated that Rule 2.1, which covers bias in ordinary advice (as a protection to the client), is seldom if ever applied by itself, that in practice it's applied only when some other violation, such as conflict of interest, is established.

Stephen R. Diamond said...

Hi Sanpete,

Your first main point challenges my claim that charging Yoo with untruthfulness to third parties would allow proving Yoo committed misconduct; in fact, you think proving a rule 4.1 violation would have been harder. The fatal weakness in the OPR's case is its ridiculous assumption that the executive requested thorough, objective advice: the absence of thoroughness and objectivity in one memorandum goes nowhere to prove the character of advice's totality. (Monroe Freedman has repeatedly made this point, which the other Legal Ethics Forum posters ignore.)

No one that I'm aware of has tried to make the case discipline based on untruthfulness with the (third-party) American public, but even without direct evidence, the circumstantial evidence is overwhelming once you take into account-in addition to the letter's striking cya appearance-that the Justice Department’s longstanding pattern is writing similar letters for the President; also, the inference that his superiors picked Yoo to write the memo because of his extremism.

The nature of this circumstantial evidence also points to the source of our differences, as you think the historical role of the Justice Department in writing cya letters represents a gray area. I would be interested in understanding how you think misrepresentations of a lawyer’s opinion can yet be truthful.

Your hypothetical example is, to my reading, no less untruthful than any cya letter, despite its lesser effectiveness: "You have asked me to give legal advice that fits as far as possible within the law your desire to do harsh interrogation, and which advice will help assure you won't be prosecuted for it as long as you remain within the law." If Yoo prefaced the memo with this proviso, it would misrepresent what everyone, including Yoo, understands: for staying within the law, such "advice" was as bad as advice gets. Including as premise the fact that Yoo is an excellent lawyer goes far in proving the memo was not “advice;” the OPR was debilitatingly mistaken not only in charging 2.1 but also in charging 1.1.

As to whether lawyers are bound to disclose their biases-I don't think that's the question here. Lawyers are bound to try to avoid expressing bias in an opinion stating what the law _is_. As Brian Tamanaha wrote, even when strongly biased, competent lawyers are capable of drawing the distinction between what the law is and what they believe it should be, and Yoo is more than merely competent.

Sanpete said...

Lawyers are bound to avoid bias in giving advice. That appears to be intended as a protection to the client. As you've pointed out, there's some question whether a CYA device should be considered advice. It incorporates an element of advocacy, on behalf of the client. Bias is proper in the lawyer's role as advocate. If Yoo had used the hypothetical preface, it would have signaled that advocacy, avoiding any possibility of deception about the bias.

One reason bias is considered proper in advocacy is that it's understood to occur in a context where there's an advocate for the other side, with a neutral referee. However, the client's need for advocacy isn't limited to actual litigation. In matters of public advocacy there is still the availability of replies from adversaries. That OLC opinions sometimes remain secret does raise special issues with regard to whether advocacy in them would be appropriate.

On the other hand, OLC opinions aren't ordinary advice either. They have a binding effect on the client, and they typically don't remain private--even ones that are secret are liable to become public if they're about a controversial point. They can therefore damage the interest of the client in regard to potential litigation or politics in ways ordinary advice cannot, raising questions of the lawyer's duty to represent the interest of the client that don't apply with ordinary advice. How OLC opinions should be done is as much a political issue as one of conventional legal ethics.

It has been suggested by others that "the people" are the proper clients for the OLC, or at least that they have an interest in the neutrality of OLC opinions that outweighs any other legitimate consideration. That, in particular, is a political issue. As the law is set up, the OLC is essentially a lawyer for the President, so arguments implying otherwise are arguing outside the law, and should perhaps be suggesting some changes in law to match their political philosophy.

If the Executive did express a desire for advocacy instead of neutral advice, and Yoo set out to provide it, it isn't clear that would be improper, all things considered.

Margolis did consider whether Yoo wrote the memos as he did to please the client, contrary to his own best views. Margolis concluded that he did not. You appear to imply it's apparent that Yoo's opinions weren't intended to stay within the law. That's not apparent to me and many others.

Anonymous said...

Don't know who Sanpete is, however, his support for Yoo is a joke. One of the most disturbing things in Yoo's analysis is of torture, is that a "major organ" has to be injured or compromised. The fact that an idiot of a lawyer, rather than a doctor or scientist wrote this is a national disgrace. The skin is a major organ. When one disfigures or harms irreparably the skin of an individual it qualifies for torture, even under Yoo's definition. It amazes me how stupid lawyers are, and how caught up they are in arguments that Aristophanes would consider sophistry at best.

Sanpete said...

"One of the most disturbing things in Yoo's analysis is of torture, is that a "major organ" has to be injured or compromised."

Yoo made no such claim.