Advising Clients after Critical Legal Studies and the Torture Memos

56 Pages Posted: 3 Jul 2011 Last revised: 4 Nov 2011

See all articles by Milan Markovic

Milan Markovic

Texas A&M University School of Law

Date Written: November 4, 2011

Abstract

One of the most fundamental tasks attorneys perform is to advise clients as to what the law is. Yet, Model Rule 2.1 (“Rule 2.1”), the chief ethical rule addressing attorneys qua advisors, is rarely enforced in the absence of other ethical violations. Although attorneys comply with the ethical rules for reasons apart from a fear of being sanctioned, it is often against the self-interest of attorneys to “exercise independent professional judgment and render candid advice” as contemplated by Rule 2.1. When attorneys calculate that their legal advice is unlikely to be challenged, they may be prone to advance tendentious legal arguments to allow their clients to carry out actions that are of dubious legality. This phenomenon is illustrated by the so-called “torture memos” in which John Yoo and Jay Bybee sanctioned coercive interrogation tactics that many regard as torture. Although the Department of Justice did not ultimately refer any Bush administration attorney for discipline, this decision was based primarily on an interpretation of Rule 2.1 that holds that an attorney fulfills his/her duty as an advisor if he/she gives advice that is not knowingly or recklessly false or in bad faith. This lawyer-friendly reading of the Rule protects legal advice that does not adequately inform clients of the possible ramifications of their conduct and incentivizes clients to seek out lawyers with extreme and idiosyncratic legal views.

This article will argue that Rule 2.1 requires attorneys to not only inform their clients of their own views of the law but also competing views. This interpretation follows from the text and commentary of Rule 2.1 and is in accordance with how many lawyers practice on a day-to-day basis. Moreover, this article’s interpretation does not presuppose that the law has determinate content and reflects that legal advice that fails to communicate competing views undermines the capacity of clients to act in accordance with the law. The ethical fault of Yoo and Bybee was not ‘getting it wrong’, but rather that they provided one-sided legal advice on questions that merited far more complex and nuanced treatment.

Keywords: Torture, Model Rules, Critical Legal Studies

Suggested Citation

Markovic, Milan, Advising Clients after Critical Legal Studies and the Torture Memos (November 4, 2011). West Virginia Law Review, Vol. 114, 2011. Available at SSRN: https://ssrn.com/abstract=1876118

Milan Markovic (Contact Author)

Texas A&M University School of Law ( email )

1515 Commerce Street
Fort Worth, TX 76102
United States
817-212-4056 (Phone)

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