Don't Kill All the Lawyers

Monday, May 11, 2009

Regarding the May 7 news story "Experts Say Authors of Memos May Avoid Professional Sanctions":

The story discussed the difficulties inherent in efforts to impose professional sanctions on Bush administration lawyers who drafted memoranda supporting the harsh interrogation of terrorist suspects.

If a client instructs his lawyer, "I want to perform a certain act; find me a legal way to do it," the lawyer's professional duty is to find a good-faith basis in the law to meet the client's needs while carefully advising the client of the risks of pursuing such a course of action. Such a lawyer not only acts well within the Rules of Professional Conduct, but he also serves his client well.

Waterboarding is a perfect example. A lawyer may personally believe that such a practice constitutes torture, but there is, at the very least, a good-faith argument to be made that it is not -- as evidenced by the fact that even now respected authorities argue that this is not torture. Thus, even if the ultimate arbiter decides that waterboarding is torture, that does not mean that lawyers who advised to the contrary should be professionally disciplined.



The writer is senior legal ethics counsel for the District of Columbia Bar.

© 2009 The Washington Post Company