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DOJ’s Ex-Detainee Lawyers: The Ethics Issue

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One neglected issue in the controversy over the revelation that there are at least nine (or ten, if you count Attorney General Eric Holder) Justice Department lawyers who represented, or filed briefs in support of, Guantanamo detainees is whether those lawyers are complying with applicable ethics rules--and whether those rules are being applied evenly.

DOJ’s Ex-Detainee Lawyers: The Ethics Issue

The two basic ethics rules are (a) the “inward” revolving door ban found in President Obama’s executive order imposing ethics obligations on his administration’s appointees and (b) the conflict of interest rules found in codes of professional conduct defining lawyers’ duties to clients. 

President Obama’s Ethics Order.  This bans an appointee from participating for two years in any “specific party particular matter” (includes litigation, investigations and rulemaking) in which the appointee’s former client or former firm is a party or represents a party.  The Justice Department, in a letter to Republican senators on the Judiciary Committee, takes the position that the ban does not apply to the DOJ lawyers as long as the appointee is not dealing with the same detainee that he represented or his former employer represents.

If this is a correct reading of the “inward” revolving door restriction, then it is substantially less strict than the “outward” revolving door ban found in the federal government’s and the Bar’s ethics rules.  They would ban a former government official who had, while in government service, participated in the disposition of Guantanamo Detainee A from turning around and in private practice representing Guantanamo Detainee B where the facts overlapped.  On the other hand, according to DOJ’s interpretation, a political appointee who represented Detainee A when in the private sector could participate in the disposition of Detainee B, even if they were alleged co-conspirators. 

We believe that the interpretations of “specific party particular matter” by the government’s Office of Government Ethics and the D.C. Court of Appeals of their respective “outward” revolving door rules (some of which we happen to disagree with) compel the conclusion that the implementation of President Obama’s January 2009 executive order (entitled “Review and Disposition of Individuals Detained at Guantanamo Bay Naval Base and Closure of Detention Facilities”) involves the same specific party particular matter as the representation of any of the Guantanamo detainees.  Thus, any Obama appointee who represented, or whose former employer represents, a detainee (including in an amicus capacity) would be banned from being involved in the review or disposition of any Guantanamo detainee. 

This conclusion would be consistent with the purpose of President Obama’s ethics order – to keep appointees from acting in a way that benefits their former clients. After all, one would be horrified to find a lawyer who had represented Exxon in a DOJ antitrust conspiracy investigation joining the antitrust division and formulating policies or litigation strategy concerning another colluding oil company.

The Bar’s Client Loyalty Rules.  These ban a lawyer who has represented a client in a matter from representing another person in the same or a substantially related matter in which that person’s interests are materially adverse to the former client’s interests, unless the former client gives an “informed consent.” Where a lawyer’s former firm represents or represented a client in a matter and the lawyer acquired material confidential information, the lawyer cannot represent another person with adverse interests in the same or a substantially related matter without the former client’s “informed consent.”  

Again, we believe that a government lawyer who had represented a Guantanamo detainee or who had acquired material confidential information about his former firm’s detainee client would have serious problems in participating in the implementation of the Obama executive order mandating the review and disposition of the Guantanamo detainees. 

The purpose of the Bar rules is to protect a former client from the use by a former lawyer of privileged or protected information in a manner that would adversely affect the former client.  Given the clamor raised by the human rights lobby over the treatment of the Guantanamo detainees, we are stuck by the total absence of any expressions of concern whether the rules designed to protect the detainees are being followed. 

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