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PetefromOzFirstPaper 4 - 17 Apr 2009 - Main.PetefromOz
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There is a well-known phenomenon of in-house counsel being ‘captured’ by the client’s interests. When a lawyer consistently works for one client he or she gradually comes to identify with the client’s interests and, consciously or otherwise, adopts those interests. This can be especially problematic within government as public sector lawyers sometimes choose to work for particular agencies or administrations because the lawyers believe in the policy agenda being pursued. The pressure from exigent circumstances, especially national security threats, can create “institutional and ideological factors [that] can erode compliance with ethical norms” (Peter Margulies, When to Push the Envelope: Legal Ethics, the Rule of Law, and National Security Strategy, 30 Fordham Int'l L.J. 642, 643 (2007). | |
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< | Recently it has been revealed that in 2002, lawyers in the Office of Legal Counsel (OLC) in the Department of Justice provided enabling advice to allow military interrogators to utilize ‘coercive’ interrogation methods that were previously thought to be unlawful. The subsequent head of OLC, Assistant Attorney-General Jack Goldsmith, explained his reason for replacing the principal opinion in part by saying that it “lacked the tenor of detachment and caution that usually characterizes OLC work” and was a “redundant and one-sided effort to eliminate any hurdles posed by the torture law” (Jack Goldsmith, The Terror Presidency 149 (2007)). | >
> | Recently it has been revealed that in 2002, lawyers in the Office of Legal Counsel (OLC) in the Department of Justice provided enabling advice to allow CIA interrogators to utilize ‘coercive’ interrogation methods that were previously thought to be unlawful - see http://72.3.233.244/pdfs/safefree/olc_08012002_bybee.pdf. The subsequent head of OLC, Assistant Attorney-General Jack Goldsmith, explained his reason for replacing the principal opinion in part by saying that it “lacked the tenor of detachment and caution that usually characterizes OLC work” and was a “redundant and one-sided effort to eliminate any hurdles posed by the torture law” (Jack Goldsmith, The Terror Presidency 149 (2007)). | | | This example illustrates that the way that a government legal office is managed can make a significant difference to the ethical practice of the lawyers. ‘Enabling advice’ provides a legal justification to support a client’s desired course of action, and often resembles a brief prepared for litigation. The classic application of ‘enabling advice’ is tax attorneys advising taxation accountants on the interpretation of the tax code that is most favorable to facilitate a tax minimization scheme. Principally due to the fear that lawyers will be ‘captured’ by their clients, many government lawyers are taught to studiously avoid ‘enabling advice’. | | | Subsection B - Acting as a Model Litigant
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< | Secondly, the government should always act as a model litigant (see Steven Berenson, The Duty Defined: Specific Obligations that follow from Civil Government Lawyers’ General Duty to Serve the Public Interest, 42 Brandeis L.J. 13 (2003); see also the Equal Access to Justice Act 28 U.S.C. § 2412 (2000)) This means that the government ought to act with complete propriety, fairly and in accordance with the highest possible standards in its conduct of litigation. For instance, the government should not take technical points and should always consent to any reasonable request (e.g. for adjournments) unless the government’s interest will be prejudiced by not taking the point. Similarly, the government should not require parties to prove any point that the State knows to be true and should pay all legitimate claims without litigation. | >
> | Secondly, the government should always act as a model litigant (see Steven Berenson, The Duty Defined: Specific Obligations that follow from Civil Government Lawyers’ General Duty to Serve the Public Interest, 42 Brandeis L.J. 13 (2003); see also the Equal Access to Justice Act 28 U.S.C. § 2412 (2000)). This means that the government ought to act with complete propriety, fairly and in accordance with the highest possible standards in its conduct of litigation. For instance, the government should not take technical points and should always consent to any reasonable request (e.g. for adjournments) unless the government’s interest will be prejudiced by not taking the point. Similarly, the government should not require parties to prove any point that the government knows to be true, and should pay all legitimate claims without litigation. | | | |
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