This is the sort of unethical behavior that should lead to being disbarred.

I cannot dispel the nagging feeling that in addition to being despicable, Stimson's remarks may also be unlawful, though I can't put my finger on any clear doctrinal basis for that suspicion.

Query: Will any corporate clients follow Stimson's suggestion? If so, will any of the law firms knuckle under? And by the way, if they do, would it be lawful and/or ethical to call for a boycott of the aforesaid corporate clients?

Will any corporate clients follow Stimson's suggestion? If so, will any of the law firms knuckle under? And by the way, if they do, would it be lawful and/or ethical to call for a boycott of the aforesaid corporate clients?

I would be a bit surprised if these "revelations" have the consequences that Stimson seems to anticipate. Corporate CEOs and General Counsels are a somewhat more legally and culturally sophisticated group than Stimson seems to believe; some of them were probably already aware that their law firms were representing Guantanamo detainees on a pro bono basis (in my experience, firms often advertise their involvement in such high-profile pro bono cases, though I don't know whether any of the firms representing detainees actually did so), and even if they weren't, they're surely aware of the fact that law firms often take on pro bono matters not on the basis of political agreement with their clients, but on the basis of the well-founded belief that providing competent representation even to unpopular or despicable clients is a necessary and worthwhile service to the legal system itself. While Stimson seems to think otherwise, I doubt that very many key corporate decision-makers would agree with him.

As to the second question, firms might well conclude that the bad press accompanying their acquiescence to a client's demand that they drop a Guantanamo case might cost them more, in terms of both clients and recruitment opportunities, than the loss of a client would. I doubt that many NYU or Columbia students would be eager to take a job with a firm that caved in to a corporate client's demand that it terminate its representation of a Guantanamo detainee.

Andrew Sullivan:

Sources among the heroic community of pro bono lawyers who are defending some of the innocent and some of the guilty at Gitmo tell me that Stimson's comments are not isolated, that there has been a full program dedicated to the harassment of Gitmo lawyers - surveillance, pettty harassment, pressure on their law firms.

And this:

Attorney General Alberto R. Gonzales said he had no problem with the current system of representation. “Good lawyers representing the detainees is the best way to ensure that justice is done in these cases,”

Is just final confirmation that AG AG is a mendacious hack. Yes, the administration that kept an american citizen in solitary confinement for over three years without a hearing and without access to a lawyer, that fought all the way to the supreme court that they had a right to do so, believes "Good lawyers representing the detainees is the best way to ensure that justice is done in these cases."

What a bunch of morally bankrupt cowards.

Considering our apparent trajectory in the War On Terror, mightn't a prudent CEO deem it wise use a firm which also had terrorist clients?

Spitzer's comments are the only comments to adequately address the post. I also agree with Spitzer's remarks.

This New York Times news report suggests that not all of the administration is on board with Cully Stimson — or at least not officially.

Bush can prove it by firing Stimson. If he doesn't, then Bush is on board. Unless Bush wants to say that he was against Stimson before he was for Stimson.

From the article, it does not appear that Stimson was attempting to "coerce" corporate clients to take different legal representation. Rather, according to the information at my disposal, Stimson merely advertised and criticized the law firms' pro bono activities. Advertisement and criticism alone are not coercive. Now, as a result of the advertisement and criticism, some corporations may find themselves "coerced" into changing their legal representation, but the engine of the subsequent coercion would not be Stimson's comments but rather the reaction of shareholders, markets, or corporate officers to the information in those comments. As far as I am aware, the information in Stimson's comments was available publicly, and the mere act of making public information more broadly available is not unlawful or unethical. Therefore, any "coercive effect" stemming from this exchange would arise only as a result of the public being made aware of certain disagreeable facts. Lawyers, even government lawyers, cannot act unethically merely by advertising more broadly disagreeable, but public, facts.

They don't deserve better, and the public and clients have a free speech right to be informed about the activities of the law firms they hire or that occupy their community and to make judgments and express support or aversion to such firms and others. Government employees have free speech rights as well.

That's among the more absurd arguments that I've heard in this or many other contexts. How on Earth does the First Amendment create a "right" for corporations to be informed about the private actions of private law firms in their representations of other clients? You can start by addressing the lack of state action, and then explain how the right to speech entails a right to information about the activities of others.

James: unless there are particular rules that apply to Gitmo by statute, rules, or court order (of which I am blessedly unaware), the fact of legal representation in a litigation matter is a public matter to which no privilege or confidentiality applies. You are of court correct that there is no "free speech right to be informed" of the representation, but you stretch it too far when you suggest that legal representation is a private matter.

Spitzer,

By "private," I was referring to the lack of state action, a prerequisite for the First Amendment to apply. Law firms are "private" entities in that they are not government agencies, and as such their actions are not generally subject to the limitations imposed on the state and federal government via the Bill of Rights and the Fourteenth Amendment. I didn't mean to suggest that the fact of representation is privileged or confidential in the sense that it cannot be revealed to the public, only that, even if Junk Yard Dog's rather ridiculous argument that the First Amendment right to free speech entails a right to information is at all valid, it nevertheless would not apply to private (i.e., non-governmental) law firms.

The attack on lawyers having already been thoroughly discredited (except among deadenders, apparently) I'll address the other parts of Mr. Pollock's column. He responds to straw men, and pretty pitifully at that.

He witnessed a "prisoner" being "interrogated" and it didn't seem harsh to him. While this might refute a claim that every single interaction between interrogators and prisoners is harsh, no one with a brain makes such a claim. 'Good cop, bad cop' is not new. He ate the "same food" that prisoners eat, and it wasn't bad. Again, this might refute the charge that the prisoners are being fed gruel, or being starved. Another claim no serious person is making. (The government's claim that the average prisoner has gained weight suffers from an interesting flaw: it is based on weight when the prisoner arrived at Gitmo, not when they were first taken into custody. Those who lost weight at Bagram, or the prison of darkness, may have gained some back on the high starch Gitmo diet, but maybe not all). An interview with Mr. Paracha's lawyer would certainly have been appropriate, if Mr. Pollock's business was journalism, not propaganda.

To take a step back, though, Mr. Pollock's visit to Guantanamo, and viewing of a Potemkin interrogation, remind me of something. I work in the District of Columbia. I go there every workday, and most weekends. I live 100 feet from the District line, and can see into DC from my bedroom window. In 18 years here, I have never seen anyone smoke crack in Washington DC. Really. What kind of idiot would I have to be, though, to go around claiming based on this experience that no crack has been smoked in DC during all that time, and that all the hype about crack use was just MSM hysteria?

[...] They are "non-state actors" under the Geneva Convention who can be treated like spies or guerrillas. To be shot on sight.

From "day-one" the Administration should have given them a military tribunal to establish this status, and then a firing squad. That would have stopped all this nonsense. You can "dance all the Angels" you want, but International law in this case is what we say it is.

Did I miss a memo? I thought Geneva was bunk, and international law was not applicable to U.S. actions in a time of war, and anyway the creation of a bunch of wimps and cheese eating surrender monkeys. I guess I have to resubscribe to the talking points distribution list - I didn't realize that Geneva was now reformed, and that the U.S. got a make-it-up-as-you-go pass.

Alternately, I have to say I find it funny to see a "law is whatever I say it is" argument here. I think someone's been watching a few too many John Wayne movies.

And Lindybill, while you're looking that up, maybe you could explain how that provision of law (or whatever you want to make up) applies to civilians arrested by Pakistani police in an apartment in Pakistan.

It's not clear that the canons are pertinent here, as they've been superseded in most jurisdictions -- in part because their open-ended aspirational language can't be consistently interpreted or enforced. The more pertinent rule is Model Rule 1.2(b), although that's mostly a rhetorical defense of a lawyer's representation of unpopular clients and not an affirmative duty to represent unpopular clients.

As some have suggested, the inhouse counsel at major corporations are likely to side with the lawyers representing Gitmo detainees, as I explain here.

I understand that is the actual disciplinary provisions of the Bar Associations of which Stimson is a member that govern his conduct, not, strictly speaking, the the Ethical Considerations of the ABA Model Code. However, it seems to me that these provide a good guide to the sort of conduct that we should expect. And the provisions that I cite are, I believe, quite generally accepted and found in roughly equivalent form in most jurisdictions. These are not picky details that may vary from jurisdiction to jurisdiction.

As to Stimson's intentions, his comments certainly seem to me to be an attempt to persuade large corporate clients to exert pressure on law firms not to represent detainees and to induce law firms not to represent them, whether by not taking on cases in the first place or by withdrawing from representation if they can. Furthermore, whenever there is pressure not to represent a client, associated with it is the pressure not to represent the client vigorously if one continues to represent him. That is why I think that Canon 5 is relevant.

In context, Stimson does not seem to be lamenting the presence of these considerations nor even to be making a neutral observation about them. My reading of his remarks, and that of the journalists who have described them with headlines such as the New York Times' "Official Attacks Top Law Firms Over Detainees", is that his intention is to complain about the fact that prominent firms are representing detainees.

I have listened to the audio recording of the interview, which you can obtain here: http://www.federalnewsradio.com/emedia/59677.wma. Stimson says (3:18) that "It's shocking" that prominent firms are representing Guantanamo detainees. He characterizes the detainees as "the very terrorists that hit their bottom line in 2001" (3:48). That is hardly consistent with the presumption of innocence or with the fact that many of the detainees had nothing to do with Al-Qaeda and that, if they are not entirely innocent, they are merely people who sided with the Taliban against the invading US forces. This is followed by baseless innuendo to the effect that many of the attorneys are not working pro bono and must be getting funds from some suspicious source.

I agree that given his postion as a government lawyer, Mr. Stimson's comments were inappropriate. But would it be inappropriate for a private organization to make a similar suggestion? Groups upset with edgy TV programming frequently organize boycotts of the offending program's "sponsors" (i.e. advertisers). How is this any different?

PhillyLawyer,

I think there are two levels of criticism being made against Mr. Stimson's comments, one based on his status as a government employee and the other on the substance of his comments. The first, as you note, is that, as a government official, it is inappropriate and unethical for Mr. Stimson to encourage business leaders to boycott firms that represent clients with interests adverse to the government. The second level of criticism does not rely on Mr. Stimson's identity, but rather on the substance of his argument. This criticism asserts that it is not unethical, immoral, illegal, or unpatriotic for law firms to represent Guantanamo detainees, and that Mr. Stimson is incorrect to suggest otherwise. If a private group were to advocate the same position that Mr. Stimson did, it would not be subject to the first criticism, because it is not a state actor, but it would still be subject to the second, because its position would still be substantively wrong. Put more simply, while we can acknowledge the right of private groups to encourage boycotts of law firms or anyone else with whom they disagree on a political issue, we nevertheless retain the right to disagree with those groups' positions.

"But would it be inappropriate for a private organization to make a similar suggestion?"

I wouldn't say it was "inappropriate" in the sense of unlawful. I would, however, say that it was "inappropriate" in the sense that it displays a fundamental contempt for the entire American system of justice, since it undermines the essential notion of right to counsel in the criminal context and, taken to its logical end, subverts civil justice as well (since any given litigant will usually have some person, organization, institution, etc. which would like to see it unable to get competent counsel).

I don't think it should be lightly assumed that private speech urging this boycott would necessarily be lawful. Stimson is essentially fomenting a secondary boycott, and those are not always and everywhere permitted by law.

"Anyone else able to come up with anything else more relevant to the facts of this situation?"

Keep looking. There's got to be something in there you can use.

"I guess he must have slept through professional responsibility; he should have to take it again."

What a load of manure! And words don't describe the use of "disbarment" as somehow appropriate.

You guys can't come up with a rule that Stimson remotely violated.

These lawyers volunteered out of political motives, period. An unknown mid level official gives some mild political pushback and he must be fired or disbarred or sent back for "re-education" for thought crimes. Nice.

It certainly didn't take very long for the usual frothing crowd to work themselves into a "Stimson should be fired and disbarred because he dared to exercise his first amendment right and voice an opinion I disagree with!" frenzy.

(Bonus irony, no extra charge: The opinion Stimson dared to voice was that there might be negative repercussions for certain lawyers and law firms based on other people's perceptions of their behaviour.)

(Bonus irony, no extra charge: The opinion Stimson dared to voice was that there might be negative repercussions for certain lawyers and law firms based on other people's perceptions of their behaviour.)

Nice place you got here. Shame if something happened to it.

(Bonus irony, no extra charge: The opinion Stimson dared to voice was that there might be negative repercussions for certain lawyers and law firms based on other people's perceptions of their behaviour.)

Exactly right, if he had suggested that these law firms were being paid by terrorists he would have gone too far, but thank goodness he didn't do that, as this AP report demonstrates:

"Others are receiving monies from who knows where and I'd be curious to have them explain that."

Spitzer, the dog, and lindybill are some of the only few with any sense here.

During a war, people who are devoting their lives to destroying western civilization do not deserve the same rights as American citizens who have broken a criminal statute. They deserve to be shot. On sight. But sometimes we need for them to tell us who their buddies are.

I'd sure like to know what Stimson got in Legal Ethics at GMU.

I'm sorry, I neglected to actually provide my last paragraph with a verb and an object:

"...frustrates me."

Well, it now appears that Stimon is pretty much all alone on this one.

In response to the comments above that the lawyers representing the detainees must be lefties, please remember that lawyers of various political stripes might have internalized the profession's belief that all accuseds deserve competent counsel.

On the question of what rule Stimson violated, the closest rule is 8.4, which at least one commentor mentioned above. I've also seen a quote from Professor Gillers invoking the "engage in conduct that is prejudicial to the administration of justice" standard from that rule. But an actual disciplinary action really can't be brought here, especially since Stimson's speech will have zero effect in the real world.

Rule 1.2(b)is also pertinent, which says "A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities." But notice that this rule doesn't require any behavior from anybody. It's not even an affirmative defense to discipline charges, since there's no ethics rules prohibiting the representation of bad people. It's really just a rhetorical defense.

The profession does have a deep-seated norm that everyone deserves a defense, and Stimson's comment violates that norm -- as proven by the quick and broad repudiation of the comment. Perhaps the closest thing we have to an affirmative rule is a snippet from the traditional lawyers oath saying, "I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed." But even if that text is more aspirational than binding, those aspirations are sometimes fulfilled. For example, some superb lawyers from the major law firm Morrison &Foerster represented the so-called American Taliban, John Walker Lindh, and in my view brought honor on themsleves and the profession.

In response to the comments above that the lawyers representing the detainees must be lefties, please remember that lawyers of various political stripes might have internalized the profession's belief that all accuseds deserve competent counsel.

If that canard needed to be dignified with a response, one might point out that Profs. Adler and Volokh, hardly "lefties," have spoken out in criticism of Stimson's argument to a blog community largely populated by fellow non-lefties, where there comments appear to have been generally well-received, with some obvious exceptions.

James Dillon,

I agree with your observation, although I was making reference to the lawyers doing the actual representations (which, unless I'm mistaken, does not include Profs Volokh and Adler).

James Dillon:
Truth Seeker,
I for one would love to see a citation in support of the proposition that captive enemy combatants, in U.S. custody, who are unarmed and pose no imminent threat, may be "shot on sight,"

Well, of course I didn't mean when they were in U.S. custody, I meant before they were in US custody, when they were first encountered in combat, on the battlefield, in the warzone, etc. Instead of saying "Come out with your hands up" we should have just bombed the building.

All you leftist terrorist sympathizers have succeeded in doing is be sure we don't take any prisoners in the future. We'll either kill them on sight or give them to some country that has no prisoner rights. Or if it's a country trying to turn a terrorist over to us, we'll tell them they need to interrogate them instead of give them to us. HA! You can't win!

And just in case you (and the terrorists) win, they'll detonate their nuclear bomb in NYC or SF or LA or somewhere else filled with pro-terrorist leftists.

Truth Seeker, you missed both my questions. As for the law that allows the US to execute captives on sight, and obviously I'm not talking about during hostilities, but after, I see no answer. As for the applicability of whatever you come up with the persons arrested in Pakistan by Pakistani police, still nothing.

Peter Nordberg: Private speech urging boycotts for political reasons is indeed constitutionally protected, see NAACP v. Claiborne Hardware (1982). The rules are somewhat different in the context of labor union speech, especially picketing, urging secondary boycotts; I'm not sure the Court was right in allowing restrictions on such speech, but it has. Still, the general rule is that speech urging boycotts outside the labor union context is protected under Claiborne.

The public criticism would be unfair, but it's well within their First Amendment rights. But when government tries to win cases by attacking it's own opposing counsel, the government is attacking the adversarial system. The government is also showing a lack of confidence that it can win on the merits.

Without belaboring the utter silliness of the above argument, I offer the following comment. Opposing counsel is a term that applies to a pair of lawyers representing clients whose names usually appear in the case caption. If I represent Mr. X and you represent Mr. Y in the case of X versus Y, then we are opposing counsel. Other signs that we might be opposing counsel are if we send each other vitriolic letters concerning discovery or if we appear before a judge to discuss procedural or scheduling matters pertaining to the case of X v. Y. That said, Mr. Stimson is a lawyer who works for the government, but he is not a government lawyer as is Paul Clement. In many of these detainee cases, Paul Clement was the opposing counsel, not Mr. Stimson. If Paul Clement had made comments like those of Mr. Stimson, then perhaps we might have a major story on our hands. As it is, we have a policy official making off-the-cuff remarks. He happens to be a lawyer. But his comments in no way, shape, or fashion reveal the opinions, attitudes, or impressions of government lawyers who are opposing counsel in any cases involving detainee rights. For example, Hamdan.

The admin made the mistake of letting you people treat them as "criminals." They are not. Any more than the German spies who came ashore during WWII were.

But now most of you are bogged down with discussions of their "rights." They don't have any "rights." They are non-state actors and can be treated as we please to treat them. The only international law that can be cited is in treaties that we signed, not laws and regulations set up by others that we are not bound to observe.

That means we can kill them when we find them fighting us. That is what I meant by "shoot on sight." We have no obligation to try to arrest them and read them any "rights." If we do take them prisoner, we can use a Military Tribunal and shoot or otherwise dispose of them. Our big mistake has been to keep them alive. It allowed the Left to make an issue of them, which is precisely what the Jihadists want. The Al Qaeda Manuals have instructions on how to act in prison in order to make yourself a "victim" and gain sympathy.

This is war, not policing. General Pershing, while a field officer in the Philippines, was very successful in putting down Muslim uprisings. One thing that is supposed to have worked for him was to bury the Muslim dead in pig-skins and publicize this action. Cut down on the number of volunteers for martyrdom.

For those of you who are familiar with the HBO series, DEADWOOD, adopting the plot idea of "sending the bodies to Wu" is excellent. Wu was the head of the Chinese community in Deadwood, and owned a large pigpen. Whenever Al Swearengen, the local Tavern owner, would dispatch someone, he would have one of his henchmen load the body in a cart and dump it in the Wu's pigpen. Cut down on Boot Hill burials.

If we had done something like this during the take-down of Afghanistan, it would probably have drastically slowed the recruitment of new Taliban and Al Qaeda members.

Of course, this is all "woulda, coulda shouda" now. The International Left has been highly successful in making "victims" out of these Salafi Jihadists.

I read a post here that proposed that we should talk to them and find out what they "really want." We know precisely what they want. Osama has written about it in detail. They want to take over the Mid East, set up a Wahhabi-run Caliph, and kill anybody how gets in their way.

We are engaged in what Historians will end up calling a "long war." We are facing the "Swamp" full of Islamic barbarism that is breeding Salafi Jihadist "Alligators."

There are two main sources of Alligators in this Swamp. The Sunni based Wahhabi Theology that comes from Saudi Arabia, and the Shiite "12th Imam" Theology coming out of Iran. These two creeds have hated and fought each other for many centuries. But they will band together to fight us whenever, "the enemy of my enemy is my friend" makes sense for them.

We need to recognize that this is what we are up against. Until we do, we don't have any chance of defeating them.


Once we do understand this, our mission will be to kill the Alligators while letting the rise of "Globalism" drain the swamp.

From the New York Times: One Washington law firm, Shearman &Sterling, which has represented Kuwaiti detainees, has received money from the families of the prisoners, but Thomas Wilner, a lawyer there, said they had donated all of it to charities related to the September 2001 terrorist attacks. Mr. Ratner said that there were two other defense lawyers not under his group’s umbrella and that he did not know whether they were paid.

Stimson was correct that firms were paid. But where did the money originate? Saddam Hussein used to pay the families of terrorists if their relative died or was captured. Saddam is gone. But is all terrorist financing gone? No. Can we say Iran?

While a government official should probably not be the one to raise this issue, I can see a corporation wondering whether they were dealing with a law firm with the next Lynne Stewart. And asking how many of terrorists' attorneys, like Stewart, are aiding the jihad. She doesn't seem that much further left than many other civil rights attorneys.

In recent years, clients have begun putting pressure on major law firms to change their internal policies. Most notably in the area of diversity of hiring. You can check this with NALP. Clients pressure their law firms to hire more women and minorities, and the firms are responding. I haven't heard howls of outrage over that fact.

On a different note, I am interested in the unspoken assumption here that lawyers who represent corporate clients are politically aligned with their clients. In my experience among major firms in DC, that is not necessarily the case. DC lawyers are roughly as liberal as the community in which they live. For many of these lawyers and their firms, pro-bono becomes in a sense a way to atone for the sin of representing corporate America. This can be quite offputting if you don't start with the same liberal assumptions as so many DC area lawyers. For example, many of the law firms I interviewed with and summered with as a student made a point to showcase their activism against the death penalty. They did so I believe both because they were personally opposed to the death penalty, and because they thought that highlighting that particular aspect of pro-bono representation would help snag liberal law students who otherwise would be leery of working for law firms that predominantly represent large corporate clients. That same attempt, however, suggests to conservative law students that those same firms aren't going to be very friendly places for them, no matter who is on the paying client list. But any conservative law student already knows that most DC area lawyers are liberals.

The internal politics of the DC bar is why it is not controvercial at all for clients to pressure law firms to use affirmative action in their hiring, but it would be controversial for those same clients to question the political choices made by law firms when they donate their time and resources in pro-bono representation.

One thing that is supposed to have worked for him was to bury the Muslim dead in pig-skins and publicize this action. Cut down on the number of volunteers for martyrdom.

Thanks. This is useful in getting a better idea of the type of moral notions that form the basis for your "arguments." I've got an idea, why don't we do this while wearing ski masks and then send the grainy videos to Fox News or some Christian website?

One thing that is supposed to have worked for him was to bury the Muslim dead in pig-skins and publicize this action. Cut down on the number of volunteers for martyrdom.

Thanks. This is useful in getting a better idea of the type of moral notions that form the basis for your "arguments." I've got an idea, why don't we do this while wearing ski masks and then send the grainy videos to Fox News or some Christian website?

If terrorists use Koranic verses to justify their acts what could be better than using other Koranic provisions (such as threatening to wrap terrorists bodies in pig skin so they don't get to heaven) to stop them? Sounds brilliant.

What some of you forget is that there is a good reason for treating uniformed soldiers differently than un-uniformed spys and saboteurs. That is: we wish to discourage countries from routinely employing guerilla warfare, because it causes disporportionate civilian casualities.

That is the government's compelling interest! We wish to encourage, in the most direct and persuasive way possible, foreign fighters to adhere to basic "rules of war." Civilian lives are saved, and wars have a clear end-point when they are carried out between armies that clearly identify their state sponsorship. Just look at Iraq if you doubt what I am saying.

If there is no punishment for war strategies that seek to maximize civilian casualities, obscure state sponsorship, and make it impossible to recognize non-combatants, then some states will do precisely these things. Again, look at Iraq.

Until war is abolished, it is in the interest of every civilized human being that it be fought in a carefully constructed way. Armies and states and individuals who violate those rules need to be punished severely! Otherwise, every war will quickly become "total war," in which non-combatants have no hint of protection. Instead, civilians will be used as just another war resource-- to be burned up or conserved as one chooses. We call people who do such things "barbarians" and "war criminals." If we cease punishing this behavior, we will get more of it. More suffering, more civilian deaths, bloodier wars, wars that are more catastrophic to civilian populations.

Get it now? Look up "total war" in Wikipedia if you want a glimpse of the future if Iraq becomes the template for all future wars.

I meant "disproportionate,"not the way I spelled it. (Sorry. Can't help it. It's the English major in me.)

Yes, Public Defender, you are right. This is only tangential to the original point of the thread. My comments have to do with the more fundamental question of why guerilla combatants should not necessarily be treated well when they are captured.

godfather,

Yes, the thread did drift. People made comments on the other side of the question of what rights the detainees have or don't have, so it was unfair to single you out. Sorry about that.

Well, let's see here ...

That Stimson is violating the spirit of the Model Rules of Professional Conduct (2004) is almost beyond question. See, e.g., the Preamble to the Model Rules, paragraph 6 (lawyer's role and responsibilities as a public citizen). The Preamble, however, like the Preamble to our Constitution, or the Declaration of Independence, is only a strong and official statement of intent; it has no independent legal force and serves only as an interpretive aide.

MRPC Rule 8.4 provides that "It is professional misconduct for a lawyer to (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; ... (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law." Additionally, the comment to that rule (interpretive, but pertinent) provides that "Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer's abuse of public office can suggest an inability to fulfill the professional role of lawyers." MRPC 8.4 c. 5. Comment 1 to Rule 8.4 also fleshes out 8.4(a) thus: "Lawyers are subject to discipline when they violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so or do so through the acts of another, as when they request or instruct an agent to do so on the lawyer's behalf." (Emphasis added.) One critical issue is going to be how far beyond this "as when" clause the rule is intended to be read; Stimson's conduct was not directed at his agents but at corporations with whom he has no direct relationship, but over which he (or the U.S. government, if his statements are at least partly identified with his public office, not merely Stimson himself) might have influence.

Beginning in Chapter 8 is important because you're out of the realm of "should" and "should not" when you get here; Chapter 8 speaks in terms of "shall" and "shall not." Chapter 8 is not aspirational. It is prescriptive.

The question thus becomes not whether Stimson himself is violating the Rules of Professional Conduct; it only matters if he is trying to induce others to do so. The ultimate issue is therefore, is what he is trying to bring about a violation of the Rules of Professional Conduct, with himself as the prime mover, even if not the final link in the causal chain?

I admit this is where I get stuck. Stimson will say, at any hypothetical proceeding, that all he is trying to do is get lawyers to choose different pro bono clients, and there is no obligation to take a particular client pro bono. There are far more opportunities than available lawyers, after all. Declining to take a particular client is not a violation. Even terminating representation of a particular client is not generally a violation, if I remember correctly, unless done in bad faith. Therefore, he will say that his endgame is nothing that amounts to misconduct, and therefore, nothing he intended to induce (or did induce) can be grounds for disbarment under 8.4.

If there is a legitimate argument that he is attempting to induce something that amounts of a violation of the Model Rules, I do think that the chain of liability back to him is strong enough that that he would not escape. The counter-argument is that the corporations themselves are independent loci of decision-making and that therefore it would ultimately be their decision, not his, to pressure the private law firms. That seems pretty weak to me, since a compelling case could be made that, but for the statements made by a high-level government official, the corporations in question wouldn't have bothered wasting time even thinking about it.

I also suggested 8.4(d) and 8.4(e) as alternative theories of liability, but I'm less convinced on those than I am on the "induce" prong, and I don't have the patience to run those down right now. (Also, I've rambled on way too long as things stand.)

As a final note: one ought to make a distinction between lawyers in the target corporation (i.e., the general counsel) and non-lawyers. General counsels are not wholly subsumed into the identity of the corporation; they are still individual lawyers. Therefore, even if the corporation as a whole were of a mind to interfere with the attorney-client relationship between Hunton &Williams and Gitmo detainess, the general counsel might well want to steer clear of anything to do with it. The GC might have a duty not to compete or work against the express interests of its corporate client, but also has an obligation not to get involved with a corporation doing something that the corporation might have a right to do, but the lawyer as an individual would not. Maybe this is purely precautionary, but if I were general counsel of a corporation intending to interfere with other attorney-client relationships of my outside counsel, I honestly have no idea how I'd react other than feeling extremely squeezed.

So what's the U.S. government's excuse for using non-uniformed "private security contractors"? Think these guys aren't engaged in combat?

The current situation argues strongly in favor of this trend continuing. The US Military has all sorts of restrictions placed on its operations (see, say, this thread), yet receives no advantage domestically nor from the enemy for its troubles. Private contractors don't have the same inhibitions on their actions, nor are they subject to greater punishment from the enemy due to not being in uniform or under a formal chain of command.

I don't think this trend is a positive development, but I think it's a logical outcome when one side respects an ever increasing array of legalistic obstacles while the other side has none. The exact same dynamic can be seen at work with the US manufacturing industry moving to China.

For all those who are asking for more rights to be granted to prisoners: Be careful what you wish for...

BTW, SG, your statement seems to assume that removing these "legalistic obstacles" results in a more effective way to wage war.

Well, when the objective of the war is to establish a democratic society that is not harmful to U.S. interests, how does it help to have private contractors shooting up civilians at random?

For that matter, how does it further any military objective to have private contractors shooting up civilians at random?

Mahan Atma,

I didn't say it was a good thing, I said it was a bad thing. I also think it's bad that polluting industries move to China where it's legal to pollute rather than here where they'd have to be cleaner.

But people need security and are willing to pay for it. And the enemy has as a matter of strategy chosen to be indistinguishable from the civilian population. Largely because any attack on them can then be spun as shooting up civilians at random, which then becomes a defeat of the US Government. Having civilians contractors do it puts the US Government at arms length.

It's not my position that this is the reason that contractors are being used currently. I am saying that I imagine seeing private armies becoming a larger part of the battlespace. Not limited to Iraq, and not limited to the US Government as the paymaster either (I'd guess that oil companies will lead the way). Given the political realities, western governments are at a disadvantage when fighting against an enemy that willingly blends in with civilians. Private armies operating in lawless regions won't be. It's the capitalist equivalent of the Madhi Army.

As for the law that allows the US to execute captives on sight, and obviously I'm not talking about during hostilities, but after, I see no answer.

Why would that straw man deserve one?

Mahan Atma:

You made some inferences that I don't agree with.

1) I don't think that outsourcing/privatizing of hostilities would be effective at the stated US goals of democratization, and would be an implicit admission that those goals are not acheivable, at least near-term.

2) The US Government won't be the only player in this game. That's what all those sectarian militias are in Iraq. The realization has been made that the US and Iraqi governments are not able to provide security against an enemy that purposely conflates itself with civilians. The government isn't willing to do what is required to gain and maintain a monopoly on the use of violence. This creates a vacuum that will be (and has been) filled.

3) Even with the US Government, I don't think that it would necessarily be outsourced to westerners. For example, we largely outsourced dealing with Somalian Islamists to Ethiopia. My understanding is that the US supplied them with intel, paid their bills, gave them fuel, provided logistics, etc. Our direct involvement was limited to gunship attacks as the Islamists were retreating.

As far as providing deniablity, I don't know what the Ethiopian ROEs were like, but I'm guessing they weren't anything like ours. I know that whatever they were, the US government hasn't been tagged with responsibility for the whatever destruction was done, so it does seem to have been politically successful.

>>"What some of you forget is that there is a good reason for treating uniformed soldiers differently than un-uniformed spys and saboteurs."


So what's the U.S. government's excuse for using non-uniformed "private security contractors"? Think these guys aren't engaged in combat?


This might indeed give us pause, if we were fighting an enemy who obeyed a single law of war as laid out in the Geneva Conventions. Since they don't, and nobody on the planet seems to expect them to, it hardly makes a difference, does it? Any prisoners they take wind up as mutilated corpses. We know that ahead of time.

BTW, contractors, war correspondents, and the like, who are attached to an army, are covered in the Third Geneva Convention as needing to obey the laws of war and entitled to the rights of POWs. Those who are explicitly not covered are those who do not wear some distinguishing mark, carry arms openly, and obey a military hierarchy.

Therefore the Fourth Geneva Conventions mentions saboteurs (who operate disguished as civilians behind enemy lines) as being outside the normal protections in cases of military necessity. In WWII, it was understood by both sides that saboteurs could be summarily shot upon capture. I believe these passages in the Third and Fourth Geneva conventions were what LindyBill was referring to when he suggested that our military retain the option to treat captured terrorists as saboteurs and shoot them.

Law firms do, of course, have an ethical obligation to inform an existing client (and sometimes obtain that client's consent) before commencing representation of another client whose interests are actually adverse to the first client's. But I can't imagine that any court or ethics board would hold that a Guantanamo detainee's interests are sufficiently directly adverse to those of a Fortune 500 corporation to trigger that obligation.

Here's an interesting case history on this topic of corporate clients and major law firms. A major firm stepped out of a pro bono representation of New York City in a lawsuit about gun accessibility. After inquiries from corporate clients who were not defendants in the suit, the firm dropped out because (depending on your point of view) positional conflicts that might harm current clients or political pressure on the firm.

Here's my point. If it is not unethical for a general counsel of a corporation to ask for a list of pro bono clients of its outside lawyers and, based on a review of such list, to ask the firm to make a choice between the corporation and its pro bono defendent base on a good faith belief that such representation harms his company, why is it unethical for Mr. Stimson to suggest that corporatations do so because he believes it harms the country?

And please, I am not arguing that a law firm has any obligation to turn over its pro bono list if it doesn't choose to.

TWWren,

I do make a distinction between (1) a client making a request like that, and (2) the federal government trying to convince clients to make those requests. Independent professions -- that is, independent of the government -- are an important component of the civil societies that support liberal democracies. It's particularly bad when a particular exectuive branch administration tries to solve its considerable legal problems by trying to convince others to convince the accuseds' lawyers to abandon their clients.

I'm not saying I always find it OK when clients themselves make request like that of their own volition. Clients do have far more direct interests in the conduct of their own lawyers -- particularly when that conduct directly impacts the lawyers. So, there can be an appropriate level of give and take on issues like that.

The payload is an attack on somthing that does not exist, with the argument attacking a position similar to arguing that a doctor who happens to offer a diagnosis on television on review of a video is not violating ethics rules. (No politics here, boss!)

Except your analogy is not analogous and is about as mistaken as your spelling of "advocay". Bill Frist did in fact diagnose Terri Schiavo and claim his expertise as a doctor enabled him to do so. Mr. Stimson did not perfom any sort of legal equivalent of a medical diagnosis. He stated the fact that some white-shoe law firms have been paid to represent Gitmo detainees and he speculated that those funds could have originated from anywhere, the implication being that at least a portion of that funding could have flowed from an al Qaeda front-operation. One who receives money from an al-Qaeda front-operation is a -- in a colorful manner of speaking -- recipient of "a check from Osama bin Laden." And there's nothing wrong with disclosing that to the public.

We can certainly be critical of Stimson's logic. It's utter nonsense to argue that it "harms the country" for detainees to have free lawyers.

This borders on lying. Stimson did not say that pro bono "harm[s] the country." Stimson did not imply it harms the country for Gitmo detainees to receive free legal services; he implied that it is bad business judgment for a law firm to take on terrorist front-operations as paying clients. Do you disagree?

It's more likley to be unethical for a lawyer in litigation to try to deprive it's opposing party of counsel by threatening that counsel with economic harm for continuing the representation. It's certainly slimy.

Slimy or not, Mr. Stimson is not opposing counsel on any of these detainee cases.

Can we say "family of the accused," since that's what the NYT article said?

Is not it the case that Saddam Hussein would regularly finance terror operations by paying the families of suicide bombers $25,000 once they had blown themselves up? (Yes.) Is it not true that other financiers of terror pay the families of terrorists once they are imprisoned or captured? (Yes.)

Of course, it was probably a bad PR move for Shearman &Sterling to accept payment for that work, even if they did donate it.

Ah, so you do agree with Mr. Stimson. Perhaps you should be disbarred.

What does this have to do with whether lawyers should work for free to assert whatever rights detainees might have?

As Mr. Stimson and the New York Times have reported, some of these white-shoe firms are being paid. Do we know where every cent of each dollar of the money originates?

1. The question is not an ethical one. Stimson is simply naive about how corprations operate.

2. "...couldn't one argue that representing a terrorist who expresses a clear intent to wreck physical and economic destruction on the United States..."

Yes one could so so. It would be nice if the US Govet would. Thevery problem is that it refuses to bring detainees to trial so we have no idea if any of them have evinced any intent (much less an action rising to the level of a conspiracy) to destroy the USA. That's the exact issue -- habeas corpus being ignored by our government.

Bill Frist did in fact diagnose Terri Schiavo and claim his expertise as a doctor enabled him to do so. Mr. Stimson did not perfom any sort of legal equivalent of a medical diagnosis. He stated the fact that some white-shoe law firms have been paid to represent Gitmo detainees and he speculated that those funds could have originated from anywhere, the implication being that at least a portion of that funding could have flowed from an al Qaeda front-operation.

Did he? You believe he offered an actual medical opinon? Can you point to the medical records (even if they're restricted)?

While I can imagine that you're being funded by Illuminati operatives, I would never go out of my way to insinuate that you actually were. That would be unethical, afterall, even if it wouldn't violate ethics rules. I would also hate to suggest that your business interests didn't coincide with the growing Vast Pirate Conspiracy (Yar!), but it would be unfortunate if anything happened to your kid's trust fund.

While I can imagine that you're being funded by Illuminati operatives

Because the Illuminati fund front organizations as often as al Qaeda does. Because al Qaeda does not exist. And because the Twin Towers are still standing.

Because the Illuminati fund front organizations as often as al Qaeda does. Because al Qaeda does not exist. And because the Twin Towers are still standing.

Note that I am not making those assertions. And when you can tell me that al Quaeda is literally paying for the defense of people currently rotting in extraterritorial jails, please provide cites. This shouldn't be difficult - you're clearly certain of what you're talking about. So do it. Tell us all about it.

I would note that I work from an office with a window that faces where the World Trade Center used to be. I see the altered skyline every single day. I do find it notable that people who don't live here seem much more cavalier about using our horror to promote whatever it is they want. I've been told that I'm an idiot, a traitor, and a liar because I fail to how our current actions are making anything better. I wish I were persuaded by those arguments, but I feel, sadly, smug.

It imposes no duty on third parties, who are free to criticize a decision to voluntarily represent the America's enemies.

Stimson is not a third party. He is a party to litigation and he is trying to deprive his opponent of counsel. Worst, he is the government party. So the government is trying to deprive its opponent of counsel.

Even Alberto Gonzales, who is an strong advocate of strong government power won't publicly back Stimson on this one. Why should we?

Unless there is something more to this than public attacks on his opposing counsel, I don't think Stimson should be disbarred, but he should be criticized. He might even deserve to be fired if he refuses to back down.

As Mr. Stimson and the New York Times have reported, some of these white-shoe firms are being paid. Do we know where every cent of each dollar of the money originates?

This was a tremendous slime from Mr. Stimson. He said that he "suspects" that the firms were getting paid, but The firms deny that they are getting paid. Stimson provided no evidence to back his assertion that the firms are representing the detainees for free.

I "suspect" that Stimson is just lying about the firms getting paid. If he is lying, that really might be the grounds for bar discipline.

Finally, from the corporate client's point of view, would you want a firm that went weak in the knees every time a government official issued a shrill attack? Would you want a firm that threw its clients overboard at the first public criticism? I wouldn't think so. That's part of why Stimson's comments will backfire.

And when you can tell me that al Quaeda is literally paying for the defense of people

Except that is not how al Qaeda works. They use front operations to funnel money just like mobsters use laundromats or casinos to launder cash. The question is whether the families that paid white-shoe law firms to represent their relatives (who exist, btw) received a wire from a front operation. The proof of that would necessarily not show "literal" payment, because the money would go through at least two conduits.

Stimson is not a third party. He is a party to litigation and he is trying to deprive his opponent of counsel.

Stimson is not a party to any of these litigations. He's just a public official in the Bush administration.

"I am concerned that you do not care that some white-shoe law firms may be representing actual terrorists in exchange for terrorist-raised cash."

I'd rather that money was going to lawyers than being spent on explosives and detonators.

Bob2345 writes:One legal genius cites provisions of the ABA Model Code for PR, which of course is a MODEL CODE and not an actual code of ethics that would justify disbarring Stimson.Most states' codes track the Model Rules extremely closely, and yes, they *do* provide grounds for disbarment. I was trying to get the thread back on the subject of Adler's original post, i.e., whether there could be grounds to disbar Stimson, not whether he has acted inappropriately. My guess is that the variation between the Model Rules and the D.C. bar's rules, or the rules of whatever jurisdiction might be applicable under the relevant choice of law rules, are near mirrors of the Model Rules. Most state bar associations have not enacted many substantive alterations. If you happen to know that the D.C. bar has different ethics rules than those I posted, bring them out, but otherwise, my guess is that their provisions are nearly identical to the Model Rules--it's not like any of those individual rules are that controversial, after all.

John Steele: I'm now leaning towards saying that Stimson skirted the line without crossing it, despite my first instinct being that there should have been some actionable conduct there, but I don't think the conclusion that he was in-bounds is as open-and-shut as your tone suggests. In particular, I think 8.4(a) might be a better peg to hang one's hate on here than 8.4(d) (prejudice to the administration of justice); the latter is supposed to encompass conduct like subtly trying to incite racial prejudice in a jury in order to convict a minority defendant, IIRC. Nevertheless, I still believe that if he was trying to induce unethical conduct, he can be held liable for that. The problem I see is proving what exactly he intended to accomplish by his statement. He could arguably have been trying to induce only lawful and ethical courses of action, even though I don't believe that for a second. My disbelief, of course, is grounded only in the fact that, as you noted, "Stimson's suggestion does violate deeply held professional norms;" however, sometimes there actually *is* a parallel between professional norms and ethics rules. There may yet be one here, even if articulating it is still beyond me. I wouldn't close the book on this yet, at any rate.

<i> If you represent water polluters, you don't go and represent the Sierra Club for free. </i>

Agreed. But what does this have to do with anything? What position would the lawyers take in the Gitmo cases that would harm the interests of GM or Walmart?

You might argue that terrorism is bad for corporations, but so is fraud against corporations. These law firms defend people acused of fraud against corporations without creating a conflict. How is representing people accused of being terrorists any different?