Document Type

Article

Publication Year

2011

Journal Title

West Virginia Law Review

Abstract

One of the most fundamental tasks attorneys perform is to advise clients as to what the law is. Yet, Model Rule 2.1 (“Rule 2.1”), the chief ethical rule addressing attorneys qua advisors, is rarely enforced in the absence of other ethical violations. Although attorneys comply with the ethical rules for reasons apart from a fear of being sanctioned, it is often against the self-interest of attorneys to “exercise independent professional judgment and render candid advice” as contemplated by Rule 2.1. When attorneys calculate that their legal advice is unlikely to be challenged, they may be prone to advance tendentious legal arguments to allow their clients to carry out actions that are of dubious legality.

This phenomenon is illustrated by the so-called “torture memos” in which John Yoo and Jay Bybee sanctioned coercive interrogation tactics that many regard as torture. Although the Department of Justice did not ultimately refer any Bush administration attorney for discipline, this decision was based primarily on an interpretation of Rule 2.1 that holds that an attorney fulfills his/her duty as an advisor if he/she gives advice that is not knowingly or recklessly false or in bad faith. This lawyer-friendly reading of the Rule protects legal advice that does not adequately inform clients of the possible ramifications of their conduct and incentivizes clients to seek out lawyers with extreme and idiosyncratic legal views.

This article will argue that Rule 2.1 requires attorneys to not only inform their clients of their own views of the law but also competing views. This interpretation follows from the text and commentary of Rule 2.1 and is in accordance with how many lawyers practice on a day-to-day basis. Moreover, this article’s interpretation does not presuppose that the law has determinate content and reflects that legal advice that fails to communicate competing views undermines the capacity of clients to act in accordance with the law. The ethical fault of Yoo and Bybee was not ‘getting it wrong’, but rather that they provided one-sided legal advice on questions that merited far more complex and nuanced treatment.

First Page

109

Included in

Law Commons

Share

COinS
 
 

To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.