Guantanamo and Legal Ethics

Has the top Pentagon official in charge of the treatment of detainees at Guantanamo committed a breach of legal ethics in his comments on the lawyers representing the detainees?

On Jan. 11, Charles D. "Cully" Stimson, Deputy Assistant Secretary of Defense, Office of Detainee Affairs, was interviewed on "Federal News Radio," during which he made some remarkable statements:

I think the news story that you’re really going to start seeing in the next couple of weeks is this: As a result of a FOIA request through a major news organization, somebody asked, ‘Who are the lawyers around this country representing detainees down there?’ and you know what, it’s shocking.

Mr. Stimson then rattled off the names of some of the top law firms in the United States, concluding with:

I think, quite honestly, when corporate C.E.O.’s see that those firms are representing the very terrorists who hit their bottom line back in 2001, those C.E.O.’s are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.

"We want to watch that play out"? He wants to watch lawyers being pressured to withdraw from representing detainees? He wants to watch lawyers suffer financially for opposing his detention policies?

And it gets worse. He was then asked who might be paying these lawyers, and he replied:

It’s not clear, is it? Some will maintain that they are doing it out of the goodness of their heart, that they’re doing it pro bono, and I suspect they are; others are receiving moneys from who knows where, and I’d be curious to have them explain that.

The insinuation is that many of these lawyers are being funded by terrorists (or terrorist sympathizers) and are either hiding the source of their funding or lying about whether or not they are being paid.

But there is no reason whatsoever to believe that any of these high-priced lawyers have any motive to represent detainees other than their belief in the value of constitutional civil liberties and their professional obligations to the public.

Stimson is a member of the Maryland bar, and the Maryland Rules of Professional Conduct for lawyers say that every lawyer has a "professional responsibility to render pro bono publico legal service." (Md. RPC Rule 6.1(a).) And "pro bono publico legal service" is defined to include the representation of "individuals, groups, or organizations seeking to secure or protect civil rights, civil liberties, or public rights." (Md. RPC Rule 6.1(b)(1)(C).) Similar provisions appear in the Model Rules of Professional Conduct of the American Bar Association and in the rules adopted by most states. In casting aspersions on the lawyers representing the detainees, Stimson was not only displaying any appalling lack of professional courtesy; he was also disparaging lawyers who were actually complying with the rules of professional ethics and adhering to some of the highest aspirations of the profession, which is to guarantee equal access to justice for all.

Was Stimson trying to embarrass or intimidate the lawyers who are opposing the government in court? If he was, then he may have committed a violation of professional ethics. Rule 4.4(a) of the Maryland Rules of Professional Conduct (which are, once again, similar to the ABA Model Rules) reads in relevant part as follows:

In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, ...

Stimson has therefore not only embarrassed himself and the Bush administration, but he has probably violated the rules of his profession as well. (There is a technical issue as to whether Stimson is "representing a client" in his employment by the federal government, and it would be ironic for him to avoid the application of an ethical rule by what amounts to a technicality.)

I hope that one of the lawyers for the detainees files an appropriate complaint with the Maryland Office of Lawyer Discipline. I would want to watch that play out.

(For more information on this story, see The New York Times.)