Interlude 23. War criminal Jay Bybee purchased exoneration

The two lawyers who legally justified water-boarding—denying its character as torture—were John Yoo and his Department of Justice supervisor, Jay Bybee. Yoo subsequently landed a plum job as law professor at the University of California, Berkeley; Bybee, an even more plum one, life appointment as judge on the United States Ninth Circuit Court of Appeals. The attention of kanBARoo court previously focused on Yoo, who, as the direct perpetrator, was if not more culpable at least more obviously so. But Bybee’s recent mandatory disclosure that he received $3.2 million in legal services, contributed gratuitously by the giant international law firm Latham & Watkins, raises new issues.

The official ethicists find this huge gift troubling but hard to criticize. The obvious worry is that it will bias Bybee to favor parties Latham represents, but Bybee, so far, has reportedly recused himself from cases contested through the giant-firm’s offices. Neither the firm, in offering the gift, nor Bybee, in accepting it, broke any official ethical rule.

But the ethicists’ perception of Bybee as innocent speaks primarily to the ethical-rules’ bias and ethicists’ gullibility. A giant law firm is, in practice, a corporate entity, serving the financial interests of its owners, the equity partners. The forum of its intervention being an ethics investigation, Latham’s efforts lacked the public-relations appeal of a highly visible case. What’s in it for Latham & Watkins?

Bybee may have recused himself, but he still has not conducted himself as proper ethical rules would require, as he failed to commit himself to any definite continuation of his self-recusal policy. By not recusing himself permanently from cases involving Latham & Watkins, he tacitly threatens any party litigating against a Latham client with the possibility that Judge Bybee will have stopped recusing himself by the time its case is appealed. His temporizing stance subtly alters the balance of power in favor of Latham clients, a bias that—when iterated many times over—may substantially benefit Latham & Watkins. Any rational settlement negotiator for an opposing party will need to take into account the possibility that this case will be heard on appeal after Bybee has stopped recusing himself.

84th Installment. The Inherent Untruthfulness of CYA Letters

A CYA (cover your ass) letter is one whose purpose is to rebut client's blame in advance when acknowledging the motive would defeat the purpose. (See 75th Installment, The Torture Memos & the Tortured Legal Ethics Justifying "CYA Letters," for elaboration.) Ethicists mostly ignore CYA letters, an ensconced form of professional untruthfulness.

After I commented that professional protectiveness toward CYA letters stymied the prosecution of John Yoo, Monroe Freedman, who posts at the Legal Ethics Forum, tried to open a discussion of CYA letters. Here's the example he posted:

In 1971, the Nixon administration arrested 13,000 people, virtually all of whom had come to DC to peacefully protest the Vietnam War. I was in charge of ACLU’s litigation effort on their behalf.

One group of clients consisted of 2400 people who had been arrested for disorderly conduct, but with no probably [sic] cause and with no record made by the arresting officers of the circumstances of the arrests. (In fact, one of the group was a White House secretary who had been arrested while walking to work.) The arrestees were required to post collateral and given court dates for trials. Many did not appear because they had come from distant places. In those cases, the government moved the court to forfeit their collateral and enter a conviction. Whenever a defendant did appear, however, he or she was met at the courtroom door by a prosecutor who gave the defendant a green card indicating that the case had been dismissed and informing them how to get their collateral refunded.

Monroe describes his CYA letter:

Thereafter, with reference to the MayDay “arrests,” some members of the class asked me whether they had to answer yes if asked on job, graduate school, or bar applications whether they had ever been arrested. I told them that, in my opinion, they could properly answer no. (For those too young to recall, there were people who would be strongly hostile to anti-war demonstrators, peaceable or not; think Swift Boat attacks on John Kerry.) However, I cautioned them that a letter to that effect from me would not be an immunity bath, although it would at least provide evidence of their good faith if they were ever challenged on the issue. I also pointed out that a lie on an application might well be considered a more serious matter than the fact of an arrest, and that someone else might disagree with me regarding whether they had lied. In those cases in which people requested the letter (all such cases, as I recall), I wrote it for them. However, I did not include my cautions in the letters I simply stated the facts and my opinion. [Emphasis added.]

Momentarily disoriented by my substantive agreement with Monroe's cause—I'm less sympathetic to some of his other causes—I seriously erred in my comment (while the other commenters missed the point). An unfortunate error of mine, as Monroe's letter contains the fundamental CYA disclaimer, the basic formula rendering CYA letters a dishonest practice. My comment is useful here because it illustrates the fallacy committed by attorneys who think CYA letters benign. Mistakenly exculpating Monroe's letter, I posted:

The equivocal caveat in your direct advice amounts to advice about using the advice; placing this "meta-advice" in the letter leads a third-party reader to read the qualification into the advice itself.

My comment elevated form over substance. The language of the disclaimer is part of the advice: it's information about the likelihood the advice will prove accurate. It is no less part of the advice than a direct statement expressing that likelihood. The counter-argument that the disclaimer is boilerplate is unavailing: it compounds untruthfulness, as boilerplate inaccurately expresses the attorney's opinion in the particular case. When attorneys gratuitously denigrate their own degree of confidence through boilerplate disclaimers, they are no less untruthful than when they exaggerate their certainty. Likelihood of accuracy is of the essence; John Yoo's misconduct was gross over-confidence in his theory.

CYA letters are so ingrained in American legal practice that even I overlooked the unethical character of Monroe's letter. The deep seated untruthfulness of a professional practice is matter for deep concern. It makes lawyers oblivious to other forms of dishonesty, lowers professionals' commitment to truthfulness, and creates an accurate public impression of dishonesty. CYA letters also constitute bought exoneration, where a client's attorney administers "justice"—for a fee.

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 9^th 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. 

Conclusion

 

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."

62nd Installment. Why Prof. John Yoo and Judge Jay Bybee won’t be disbarred

The Justice Department leaked a draft report on its investigation of John Yoo and Jay Bybee. The report recommended that state-bar authorities investigate the pair — buck passing: the Justice Department is shirking its prosecutorial duties. The Justice Department can't be so naïve as to anticipate the state-bar establishment might disbar Yoo and Bybee.

Yoo and Bybee had devised irrational legal justifications for torture, helping the Bush Administration disguise its criminality. Even within the Administration, the incoming Office of Legal Counsel repudiated the Yoo-and-Bybee memos in 2003. No lawyer I'm aware of has publicly agreed with the memos' conclusions following publication, and their universally adverse reception discredits the common verdict that the opinions were ordinary errors of law. Since frivolous positions are defined as those unacceptable to any reasonable attorney, universal legal rejection of the memos' conclusions proves their frivolousness.

The torture memos aren't merely frivolous; ulterior motive also makes them vexatious. Frivolous positions often are honest mistakes of law, particularly those advanced by pro-se litigants. Unlike vexatious legal positions, frivolous ones don't show moral turpitude—a standard in California and one I have argued, correctly interpreted, serves as the proper standard for attorney discipline. The Yoo-and-Bybee memos were vexatious in their malicious intent, and their authors committed acts of moral turpitude. Jay Bybee, who coveted the 9th Circuit judgeship that became his reward, is a corrupt careerist. John Yoo is a staunch neoconservative reactionary, who, like his cothinkers, disguises absence of integrity with smatterings of utilitarian ethics. When Yoo decides a policy is best for the "general welfare," he simultaneously decides for its ethical commendability, reaching preconceived conclusions on moralistic grounds.

The state-bar establishment will never disbar Yoo and Bybee, despite their acts of moral turpitude causing injuries extravagantly worse than possible for ordinary lawyers. The concept of the state bar's enforcing ethical standards is thin veneer for pursuing political objectives of state, economic advantages of guild, and financial interests of its own, as the profession's supposed aversion to moral corruption isn't even deep enough for consensus that Yoo and Bybee committed disciplinable offenses.

To avoid challenging state-bar oppression and the ethical hypocrisy justifying it, the California-State-Bar-establishment's loyal-opposition Association of Discipline Defense Counsel justifies state-bar selective enforcement by urging that state bars don't function as an "ethics police" but as a "consumer-protection agency." The analysis is shallow in discounting the generality of unethical conduct that undergirds any protective system. If discipline is to protect consumers, ethical-rule breakers must be apt to repeat. If generalization is impossible, consumer protection is chimera. Pure consumer-protection analysis favors disbarring Yoo and Bybee because they're ethically unfit to practice law, but state-bar bureaucrats' charging Yoo and Bybee for incompetent legal reasoning, willful or not, is absurd to imagine, more so after a prestigious legal academy decided Yoo is sufficiently competent for hire, only 17 U.S. Senators voted against confirming Bybee for the 9th Circuit Court of Appeals, the 3rd Circuit arguably adopted the Yoo-and-Bybee analysis into law, House Speaker Pelosi acquiesced. and the dean of the Chapman University Law School (where Yoo is visiting) commended Yoo's torture analysis.

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