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.

Interlude 18. Judicial Narcissism versus Justice: the Melvin H. Hoffman Matter

During a phone conference, family-law litigator Melvin Hoffman called a judge a "narcissistic, maniacal, mental case." The judge reported Hoffman to the Illinois state bar, resulting in a six-month suspension, and the judge drew ridicule, even from within the state-bar establishment (see Monroe Freedman's comment). The Illinois state bar's conduct is unsavory, not only because of the infraction's pettiness but also because of prosecution in bad faith, reviving long-abandoned charges, one a decade old. From review of the ABA discussion board, one conclusion is certain: lawyers and the public—following numerous exposures—will no longer presume they should respect undeserving judges; but the legal and ethical underpinning of a critical attitude toward judges lags.

Many commenters (e.g., Comments #39 and #81) applauded Hoffman's ethics, but state-bar ideology isn't quite dead. One commenter (#10) came close to admitting that irrational, automatic public respect for courts is what's at stake, but the most repugnant argument for mandatory respect was the hypocritical claim that Hoffman's conduct was prejudicial to his client. These critics' (#33, #21, #58, and #92) readiness to second-guess Hoffman shows this is not good-faith criticism. Even the most sophisticated of these comments (#38), which pointed out that confronting a narcissist with his diagnosis predictably causes an outburst of narcissistic rage, refused to acknowledge that the injustice might have gone far enough that the incident's publicity was the only remedy or that elicitation of the judge's expected narcissistic rage was the only tactic exposing the judge as a megalomanic narcissist. (See "Installment 22: Can you tell victory from defeat?") To demand Hoffman explain his tactical reasoning ignores his work-product privilege. This was no episode of "snapping," Hoffman having written the judge to reiterate and elaborate his insights.

The lack of legal sophistication in the comments shouldn't surprise given the low level of legal coherence cultivated by a nationwide state-bar establishment that has eliminated real legal contention in ethics. The legal and ethical naivete underscores the importance of looking to other state-bar cases to build a cumulative case against the state-bar courts, and this means looking across jurisdictional lines, since the state-bar courts are similar across the land. Confusion dominated the discussion of courtroom free-speech rights. Hoffman's critics relied on the half-truth that attorneys in court lack free-speech rights, but Hoffman's supporters also erred, if in a less pernicious fashion, by simplistically affirming that ordinary free speech rules favoring the speaker applied. When an attorney represents a party, restrictions on the attorney's speech aren't measured by the attorney's free speech rights but by his client's equally exacting first-amendment right to petition. While the Hoffman supporters were formally wrong in claiming Hoffman's free-speech rights (#21), they recognized a first-amendment issue. Any restriction on an attorney's right to speak relevant truth defeats his client's right to petition. The burden of proving falsity falls on the judge or bar prosecutor, whereas the Illinois bar court assumed Hoffman culpable unless he proved his accusation.

The conspicuous weakness in Hoffman's supporters was their general failure to distinguish this act of state-bar oppression from ordinary court-imposed sanctions or contempt findings. Hoffman's critics understood a distinction in the opposite sense that duty requires attorneys to demonstrate compliance with higher standards than laymen, but that's a miserable debater's point: "respect for the court," while theoretically a higher standard, is vaguer, hence harder to prove, than the standards for contempt or other sanctions. For a judge to report a lawyer to the bar courts without citing him for contempt or issuing any sanction is so craven it immediately inculpates the judge in some foul play. The judge bypassed the rigorous criteria for contempt and monetary sanctions in the courts of record by avoiding those courts and forum shopping a softer adjudicator.

Any state-bar discipline for courtroom behavior imposes a penalty far more onerous than the courts, as even a public reprimand often ends an attorney's career. The difference in punishment between lawyer and nonlawyer for courtroom behavior is so wide, it affronts the lawyer's and his client's equal protection of the law.