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. (http://tinyurl.com/ycwqnx5)
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. (http://tinyurl.com/yz786ut)
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, http://tinyurl.com/ydjd4sl) 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. (http://tinyurl.com/yencelx)
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). (http://tinyurl.com/y9e3pon)
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.