Where to draw the line

Providing legal opinions is an everyday occurrence, but what part should ethics play in the form and function of such opinions?

A formal legal opinion, properly done, is the essence of lawyering. It sorts out the relevant facts. It marshals the appropriate law. It contains a dollop or two of common sense and a measure of worldly experience. From this brew comes the “opinion” itself, a well-considered, amply supported legal conclusion that commands respect and can be relied on by the client who asked (and generally paid) for it. It is ethically inspired and seeks the truth so far as it can be found. It is professionalism at its best. This is what we lawyers aspire to. Or do we?

Some skeptics think the legal opinion has become just another commodity, tailored to the needs of the consumer, bought and sold in a competitive marketplace like any other product. Regard for ethics and the legal truth, these critics say, has been lost.

Exhibit A for this point of view is the so-called “torture memos,” a series of legal opinions written between 2002 and 2007 by lawyers in the Office of Legal Counsel at the United States Department of Justice, all justifying a wide variety of CIA techniques used in interrogating al-Qaida suspects. The techniques included menacing a suspect with a power drill, and threatening to rape his mother and kill his children. All of these techniques were legal, said the memos, most of which can now be seen on a variety of web sites, including that of the American Civil Liberties Union (aclu.org).

Writing in the Oct. 8, 2009 issue of The New York Review of Books, David Cole, a professor at Georgetown University’s law school in Washington, D.C., says of the torture memos that they “reveal a sustained effort by OLC lawyers to rationalize a predetermined and illegal result.” Cole writes: “Law at its worst treats legal doctrine as infinitely manipulable, capable of being twisted cynically in whatever direction serves the client’s desires.”

The authors of the memos were not low-level functionaries who could only be expected to do what they were told and didn’t understand the significance of what they were about. They included Jay Bybee, an assistant attorney general and now a federal judge on the U.S. Court of Appeals for the Ninth Circuit, and John Yoo, a deputy assistant attorney general and former clerk for Justice Clarence Thomas, now a law professor at the University of California Berkeley.

I can hear the reader mumbling, ‘Just a minute, Slayton, what are you going on about?’ Writing U.S. legal opinions justifying torture is a world away from what happens in law offices on Toronto’s Bay Street, or on 13th Street in Prince Albert, Sask., or — come to that — in the Justice Department building on Wellington Street in Ottawa. But, every day in law offices across Canada, legal opinions on a vast variety of questions are being carefully crafted to meet a client’s needs and desires.

Most of them are entirely innocuous and not controversial, dealing with routine matters. But some are not. Some sail close to the wind. They might bless doubtful tax shelters, for example. They might sanction employer contribution holidays from defined-benefit pension plans.

They might approve huge retention bonuses for senior executives of a company in serious financial difficulty.
But there are no Canadian “torture memos,” right? If only that were true. The Canadian Press reported that in December 2005, the Department of Justice Canada gave a 10-page opinion to the foreign affairs department that “extraordinary rendition,” the U.S. practice of shipping terrorism suspects to foreign prisons where harsh interrogation techniques are used (remember Maher Arar?), was lawful in some circumstances. Extraordinary rendition is sometimes called “torture by proxy.”

So far as I can discover, the text of this Canadian government legal opinion has not been made public. It should be. We need to know what it says.

When I practised law as a partner in a big firm, I told junior lawyers, echoing the party line, that our job was to find a lawful way for clients to do whatever they wanted. There was almost always a path to the desired result, I said, provided we were imaginative and clever.

The law is so complex and difficult that it permits a wide variety of plausible interpretations, including ones that completely contradict each other. So, let’s find the right answer — the one the client wants — and be prepared to write an opinion that says everything is fine. Anything is legally possible, if we lawyers try hard enough; that’s why clients pay us, and pay us well.

Is it OK for lawyers to be just guns for hire? Or should legal practice, including the giving of legal opinions, be underpinned and constrained by commitment to personal and social ethical standards? I was lambasted a few months ago for arguing in these pages that lawyers should take into account the values and well-being of their community.

A lawyer’s job, my bad-tempered critics said, is to represent the client, any client, to the utmost, no matter what, without allowing particular ethical considerations (which may not be universally shared) to muddle things up and get in the way. Our very system of justice, they told me, the entire adversarial system, etc., etc., depends on it.

Maybe, but surely a line has to be drawn somewhere. Even if you embrace the hired-gun theory, surely not everything and anything is OK. Where and how do you draw the line? Torture memos? Most lawyers, I believe, would say that such opinions are not acceptable, but Judge Bybee, professor Yoo, and perhaps some lawyers in the Department of Justice, thought differently.

Aggressive tax shelter opinions, helping the rich get richer and depriving the public treasury of funds needed for great public projects? That’s more difficult; most would think that such opinions are just part of a normal day’s work, but a very senior tax lawyer of my acquaintance, impressively, would have nothing to do with them on ethical grounds. Good for him.