Professional Responsibility Compliance and National Security Attorneys: Adopting the Normative Framework of Internalized Legal Ethics

Abstract

In 2010, a Department of Justice report cleared the authors of the infamous “torture memos” of professional misconduct, but was highly critical of their adherence to ethical norms. This episode underscores the lack of clarity in the professional responsibility obligations of government legal advisors. While methods such as identifying the client and defining the role of the attorney have been used to facilitate adherence to ethical norms, empirical evidence demonstrates that these approaches fail to overcome external pulls from ethical compliance during times of crisis.

This article argues that ethical compliance failures by government legal advisors calls for a fundamental reexamination of the approach to professional responsibility in the national security context. In particular, this article suggests that the application of compliance theory is useful to critically evaluate the behavior of legal advisors in relation to ethical norms. Applying this analytical model, I propose the adoption of a three step process - internalized legal ethics - which is well suited to conceptualize the professional responsibility obligations of government attorneys. This process of interaction, interpretation, and internalization encourages organizational measures to facilitate individual compliance and is consistent with the fluid nature of legal advice in crisis situations.

Keywords: Professional Responsibility, National Security, Torture, Compliance, OLC, DOJ, Legal Ethics