Zacharias, Fred C.
November 2009
Emory Law Journal;2009, Vol. 59 Issue 2, p333
Academic Journal
This Essay considers whether lawyers should offer legal advice that clients request and will pay for, even when giving that advice might facilitate wrongful behavior. As a vehicle for analyzing the issue, this Essay discusses memoranda written for the Administration of President George W. Bush by Deputy Assistant Attorney General John Yoo, who advised that the physically and psychologically abusive interrogation of enemy combatants in Afghanistan was, or might be, legally justifiable. This Essay is neither intended to critique or defend the legal analysis underlying the so-called "torture memos," nor to serve as a referendum on Yoo's political views. Rather, this Essay analyzes Yoo's particular role as a lawyer and what effect it should have had on how he conducted his work. This Essay has three goals. The torture scenario illustrates a complex ethical dilemma that attorneys sometimes face. It also demonstrates that the professional dilemma John Yoo confronted was, although extreme, not unusual. Finally, this Essay highlights the value of academic theory and debate in resolving the dilemma. As a prescriptive matter, this Essay affirms the importance of distinguishing counseling from advocacy for purposes of defining lawyers' professional responsibilities. This Essay further concludes that counseling situations should themselves be differentiated into three categories-namely, those in which attorneys (1) advise clients who want to conform to existing regulations; (2) respond to client requests to identify and implement the best possible arguments in ongoing litigation; and (3) offer formal legal opinions for purposes other than helping clients conform to the law or advance litigation. The third category creates the most difficult ethical dilemmas, particularly in situations where a lawyer suspects that a client wishes to use an opinion to justify illegal or otherwise wrongful behavior. This Essay proposes a regulatory framework that would require lawyers to inquire into clients' motivations for requesting formal opinions, to discuss the merits of alternative client behavior, and sometimes to decline to participate in the representation.


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