Attorney ethics require effective research skills: "the torture memos"

Whatever you feel about the “tor­ture memos,” one under­ly­ing les­son is an impor­tant one for any lawyer: fail­ure to do effec­tive research when advis­ing your client can be as much of a breach of eth­i­cal rules as fail­ure to meet deadlines.

Critics say the lawyers left out impor­tant, rel­e­vant cases that would have pointed to dif­fer­ent conclusions.

For exam­ple, in 1983, a Texas sher­iff was tried for water­board­ing pris­on­ers. Justice Department pros­e­cu­tors called the prac­tice tor­ture. But a 2002 Justice Department memo ana­lyz­ing whether water­board­ing is tor­ture makes no men­tion of the case.

…
Maybe lawyers didn’t inten­tion­ally skew the law. Maybe they just missed the Texas case.

Wendel says that points to another ethics rule.

“Ethics rules can require good lawyer­ing, so sloppy lawyer­ing can be a vio­la­tion of the duty of com­pe­tence,” he says.

via Did Justice Department Lawyers Violate Ethics? : NPR.

The appel­late case fol­low­ing up this Texas sher­iff case was United States v. Lee, 744 F.2d 1124 (5th Cir. Tex. 1984). It took me some time to find using LexisNexis, partly because it refers to “water­board­ing” as “water tor­ture.” In addi­tion, the appel­late case cited above deals more with the sev­er­abil­ity of defenses rather than with tor­ture itself — that was, appar­ently, dealt with at the trial court level (trial court deci­sions are much more dif­fi­cult to find, and gen­er­ally carry no prece­den­tial value anyway).

Certainly, given the lim­ited infor­ma­tion on this par­tic­u­lar case, I don’t think it’s a slam-​​dunk eth­i­cal vio­la­tion not to have cited it — although, that said, this was a case argued and won by the Justice Department itself. Every law firm and orga­ni­za­tion I’ve been in always has search­able records of their own briefs and cases. I doubt the Justice Department is any dif­fer­ent. That fact cer­tainly raises the bar for Justice Department lawyers.

Regardless of this spe­cific instance, I think it’s impor­tant that these days, min­i­mum eth­i­cal stan­dards require online search­ing, not just look­ing in a few indices and printed jour­nals. They may also require main­tain­ing and search­ing a firm’s own briefs and cases (“knowl­edge man­age­ment,” in IT terms) in more detail than merely using Lexis or Westlaw.

Certainly I’ll be inter­ested, even out­side of the spe­cific inves­ti­ga­tion of these lawyers, in what the final report will say about attor­ney ethics and the impor­tance of effec­tive and com­pre­hen­sive research.

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• The Latest from the APA On Torture (andrew​sul​li​van​.the​at​lantic​.com)
• Bybee defends his tor­ture memos as ‘legally cor­rect’ and ‘a good-​​faith analy­sis of the law.’ (thinkprogress​.org)