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DOJ’s Ex-Detainee Lawyers: The Ethics Issue

4:52 PM, Mar 22, 2010 • By EDWIN D. WILLIAMSON and RICHARD W. PAINTER
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Consistent Application of Ethics Rules.  When Reagan-Bush State Department legal adviser Abraham Sofaer took on the representation of the Libyan Government in 1993 in an effort to settle the PanAm 103 bombing case, a high profile debate erupted over whether he was violating the “outward” revolving door rules.  Senator Carl Levin asked the Office of Government Ethics for its opinion as to whether Sofaer was in violation of the federal revolving door ban.  In response to an op-ed by Washington Post columnist Jim Hoagland suggesting that Sofaer would have undue influence on the Clinton administration’s handling of the PanAm 103 bombing (!), the D.C. Bar Counsel initiated an action against Sofaer alleging violation of its revolving door ban. 

Although he withdrew immediately from his Libyan representation, Sofaer eventually was issued an informal admonition by the D.C. Bar Counsel, the lightest form of ethics punishment, but it did constitute a finding that he had violated the ethics rules.  The D.C. Court of Appeals, in upholding Sofaer’s sanction, essentially adopted a safe harbor rule, in effect requiring a lawyer facing a close or difficult ethics issue to obtain the view of her employer’s or her Bar’s ethics expert. 

The questions we are addressing are complicated, and the determination of whether these rules are being complied with depends very much on the facts of individual cases.  At a minimum, therefore, we believe that the Justice Department should release their internal opinions as to why they believe that the president’s ethics rules and the Bar rules have been complied with.  Senate Judiciary Committee members should ask for the views of the director of the Office Government Ethics and the D.C. Bar Counsel or the D.C. Bar Ethics Committee. 

Under existing federal ethics rules, the standard for deciding whether an executive branch official may participate in a particular matter is whether “a reasonable person with knowledge of the relevant facts would question his impartiality in the matter.”  Given the ferocity with which the detainees’ lawyers criticized the government’s detention policies, it is a fair question whether those who are now government officials meet this impartiality standard.

President Obama claims to have established high ethical standards for his appointees.  His words should be implemented into action.  The placing of former detainee lawyers in detainee-sensitive positions raises separate serious questions as to the attorney general’s judgment. 

Professor Painter teaches government ethics at the University of Minnesota Law School and served as associate White House counsel for ethics under President George W. Bush.  Mr. Williamson is a retired partner of Sullivan & Cromwell LLP and succeeded Abraham Sofaer as State Department legal adviser.  He submitted amicus briefs in Sofaer’s support in his D.C. Bar proceedings.

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