Whatever you feel about the “torture memos,” one underlying lesson is an important one for any lawyer: failure to do effective research when advising your client can be as much of a breach of ethical rules as failure to meet deadlines.
Critics say the lawyers left out important, relevant cases that would have pointed to different conclusions.
For example, in 1983, a Texas sheriff was tried for waterboarding prisoners. Justice Department prosecutors called the practice torture. But a 2002 Justice Department memo analyzing whether waterboarding is torture makes no mention of the case.
. . .
Maybe lawyers didn’t intentionally skew the law. Maybe they just missed the Texas case.
Wendel says that points to another ethics rule.
“Ethics rules can require good lawyering, so sloppy lawyering can be a violation of the duty of competence,” he says.
The appellate case following up this Texas sheriff case was United States v. Lee, 744 F.2d 1124 (5th Cir. Tex. 1984). It took me some time to find using LexisNexis, partly because it refers to “waterboarding” as “water torture.” In addition, the appellate case cited above deals more with the severability of defenses rather than with torture itself – that was, apparently, dealt with at the trial court level (trial court decisions are much more difficult to find, and generally carry no precedential value anyway).
Certainly, given the limited information on this particular case, I don’t think it’s a slam-dunk ethical violation not to have cited it – although, that said, this was a case argued and won by the Justice Department itself. Every law firm and organization I’ve been in always has searchable records of their own briefs and cases. I doubt the Justice Department is any different. That fact certainly raises the bar for Justice Department lawyers.
Regardless of this specific instance, I think it’s important that these days, minimum ethical standards require online searching, not just looking in a few indices and printed journals. They may also require maintaining and searching a firm’s own briefs and cases (“knowledge management,” in IT terms) in more detail than merely using Lexis or Westlaw.
Certainly I’ll be interested, even outside of the specific investigation of these lawyers, in what the final report will say about attorney ethics and the importance of effective and comprehensive research.
Related articles by Zemanta
- The Latest from the APA On Torture (andrewsullivan.theatlantic.com)
- Bybee defends his torture memos as ‘legally correct’ and ‘a good-faith analysis of the law.’ (thinkprogress.org)