NYSBA to Gitmo Defense: We Don’t Care

The Department of Defense lawyers who are charged with defending the enemies of our nation sit in an office in Virginia, where the talk on telephones provided by the DoD and type their papers and emails on computers provided by the DoD.  Just to be sure, the DoD thought it best to have each of them sign off on a consent form that since the government owns all that stuff, the DoD has the authority to monitor it. Every last bit.

It sounded a little screwy to the defense lawyers, since it flies against every ethical precept of client confidentiality they had ever learned.  Not that anyone was necessarily surprised about it, the government preferring to know more rather than less, but these are lawyers, even if they get a DoD paycheck and work on DoD computers.

The directive from the Convening Authority for the Office of Military Commissions to the Office of Chief Defense Counsel came in August, 2010.  Figuring this might be a bit of a problem, and completely unwilling to sell their clients out, one of the lawyers who was admitted to practice in New York sought an ethics opinion from the New York State Bar Association on the demand.  There was no doubt that they had a firm grasp of their ethical obligation to keep their clients’ privileged communications confidential from the DoD, but it would prove enormously useful to have an official ethics opinion that said so, something to roll up and smack the guy from the Convening Authority in the face.

So on September 1, 2010, the request was sent to the New York State Bar Association for an ethics opinion.  Bearing in mind that the DoD lawyers defending the Gitmo detainees have no independent ethical overseer, and look to their bar of admission for their ethical determinations.  They are admitted in one state, situated in another and, as here, representing detainees at tribunals on a military base in Cuba.  Cuba, unfortunately, offers little on the ethical proscription front, but then, it’s law doesn’t apply at Guantánamo anyway.

Notably, unlike some other states, New York ethical discipline is handled by a disciplinary committee under the auspices of each of the four Appellate Divisions of the state.  The NYSBA is a voluntary association, rather than the controlling association for all lawyers, and one of the services it provides is ethics opinions upon request.  The opinions aren’t binding, but provide guidance and some persuasive authority.  More importantly, by seeking and adhering to an NYSBA ethics opinion, one can demonstrate good faith reliance that will serve to vitiate any subsequent claim on deliberate unethical conduct. 

So while it’s not the final word, it matters and helps.  And the DoD lawyers really needed some help staring down the government on behalf of their enemy combatant clients, who may be the only group in America without a Facebook fan page.

A few weeks later,  /files/66432-58232/NY_Bar_letter[1].pdf”>very official NYSBA opinion arrived.

We conclude that we lack jurisdiction to resolve your question because the New York Rules of Professional Conduct (the ”New York Rules”) do not apply to the situation you describe. The jurisdiction of this committee is limited to questions arising under the New York Rules. The committee is charged with interpreting the New York Rules by answering questions of professional conduct that are governed by these rules. In your case, the threshold choice of law question is whether your conduct is governed by the confidentiality provision of the New York Rules (i.e., Rule 1.6), or by the confidentiality provision of some other jurisdiction — e.g., those of the state in which your office is physically located or the rules, if any, adopted by the military commissions before which you practice. Unless the confidentiality provision of the New York Rules applies to your work, this committee lacks jurisdiction to provide you an answer.

They lack “jurisdiction”?  They have no jurisdiction. Over anyone. Anywhere. Ever. This is an NGO, a voluntary association where a bunch of guys who raise their hand when somebody asks, “anybody want to be on the ethics committee?”

The informal response, “not a formal opinion,”  was signed by Roy Simon, Hofstra Law School’s Howard Lichtenstein Distinguished Professor of Legal Ethic and chair of the committee. He went emeritus in September 2011.  According to his CV:

Member (1995-present) and Immediate Past Chair (2008-2011) of the New York State Bar Association Committee on Professional Responsibility. This Committee responds to ethics inquiries from attorneys regarding the New York Rules of Professional Conduct, and the Committee comments on proposals affecting regulation of lawyers.

Or fails to respond to ethics inquiries when they’re too busy cowering in the corner. Maybe he forget that part.

The unanswered question is whether between the time of the draft opinion and the ultimate display of worthlessness embodied by the “informal response,” someone, oh say from the DoD or some other jumble of initials using government computers, “reached” the committee to convince them to keep their nose out of government business? 

Or whether the committee, perhaps its chair, decided that it wasn’t good for them to become embroiled in the thorny question of how a New York lawyer should ethically address a government demand for wholesale access to his client’s confidences.  After all, it’s one thing for the lawyers whose butts are on the line in the defense of enemy combatants to bear the risk of ethics, but why would anyone who joined a bar association committee in New York want to take a risk pissing off the government? 

Despite the manifest failure of the NYSBA ethics committee to show the slightest interest in ethics or fortitude, defense lawyers have persisted in their refusal to consent to the government’s monitoring of their work, and the