images: John Yoo, David Margolis, Jerrold Nadler
Every lawyer has the duty under RPC 8.3 to report professional misconduct that "raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects".
U.S. Deputy Attorney General David Margolis rejected the finding of the internal Office of Professional Responsibility that John Yoo while at the Office of Legal Counsel intentionally violated his "duty to exercise independent legal judgment and render thorough, objective, and candid legal advice" with respect to five documents" Yoo penned which sanctioned waterboarding and other coercive actions asserted to be methods of interrogation. (reports HERE, the "torture memos" HERE)
Disturbed by the decision, Congressman Jerrold Nadler (D-NY), a lawyer and member of the House Judiciary Committee, announced yesterday that he is referring the Yoo matter to state disciplinary authorities. He issued this cri de coeur:
[I]t is imperative that the Department of Justice ensure that a special counsel fully investigates commission of torture, to follow the trail wherever it goes, and, if warranted, to prosecute accordingly. There is no legal or moral reason to insulate those who authorized the torture of detainees. High-ranking officials and lawyers who distort legal reasoning to justify or authorize war crimes can, and should, be held legally accountable. Because the ban on torture is absolute, we have a legal obligation to investigate torture and all of those who may have been party to its use.”
The controversy centers on the Margolis decision that Justice Department internal standards require "identification of a known, unambiguous obligation (and) a finding... that the obligation unambiguously apply". That standard - `unambiguous' obligations that `unambiguously' apply - is foreign to the usual rules of attorney misconduct.
Though some states require proof by a preponderance of the evidence, and others by clear and convincing evidence, none employs the dual finding of unambiguous standards of conduct and unambiguous violation. Behind this debate lies the question of how far the lawyers in the Justice Department's Office of Legal Counsel (OLC) can or should go to do the bidding of the President whom they advise.
Although he sharply criticized the former OLC lawyer Margolis concluded that Yoo's actions did not satisfy the lack of ambiguity test. Saying that Yoo had used "poor judgment" but did not intentionally violate clear standards, Margolis explained:
John Yoo's loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, views of executive power while speaking for an institutional client. These memoranda suggest that he failed to appreciate the enormous responsibility that comes with the authority to issue institutional decisions that carried the authoritative weight of the Department of Justice.State disciplinary authorities are bound neither by U.S. Justice Department standards nor by findings that are themselves the subject of bitter division within the Department. But those who review Nadler's referral and complaints lodged by others against Yoo (here) will find it challenging to persuade the authorities to enter the hornets nest.
Although RPC 8.4 does not require proof of intent or recklessness, complainants must show that Yoo violated the Rules of Professional Conduct. This will require an expansive interpretation of RPC 1.1 - Competence which demands of lawyers that "legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."
Also at issue is RPC 2.1 which requires "independent professional judgment and candid advice", which may take into account "not only law" but also relevant "moral, economic, social and political factors".
One-sidedness and stretching a point to give support to one's supervisor's policy preferences are, alas, vices for which the bar and disciplinary authorities have often shown broad tolerance.
Lawyers who are asked to evaluate a proposed course of conduct a client would pursue must provide a candid analysis of how a court would likely apply the law to the proposed actions. If you provide only the case law that supports the action and ignore contrary authority you've done a poor job. The torture memos read not as an analysis of the pros and cons of a proposed course of action but as a piece of advocacy to justify decisions already made. In one of the memos, Yoo indicates that it is highly unlikely that the government's actions would ever be subject to judicial review. That comment is highly telling. You're right, George, that disciplinary authorities are unlikely to find a violation. But there should be a recognition that lawyers for the United States owe a duty to the rule of law itself. That was really thrown out the window by Bybee and Yoo. If anything, Bybee's fitness for judicial office should be questioned, as should Yoo's fitness for an academic appointment.
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