Academic journal article Harvard Law Review

Government Counsel and Their Obligations

Academic journal article Harvard Law Review

Government Counsel and Their Obligations

Article excerpt

I. INTRODUCTION

Shortly after being sworn in as the seventy-ninth Attorney General of the United States, John Ashcroft was asked whether he saw his role as being an "attorney for the president or the country." (1) "Yes," was his cryptic reply. (2) Although he gave his answer in jest, the new Attorney General could be forgiven for any confusion he might have had. The question of the identity of the government lawyer's client has long been controversial. One scholar, writing in the early 1990s, described the issue as one that had "vexed decision-makers and commentators for many years." (3) Despite attempts to answer the question, it remains far from settled. (4) The related question of what obligations a government attorney owes to his or her client also remains unanswered. These questions are significant because of the influence that government attorneys enjoy (5) and the marked increase in the importance of their function in recent years.

Recent developments have magnified the need to clarify the role of government attorneys, particularly those in the executive branch. (6) First and most importantly, high-level government lawyers have played a central role in the government's response to the terrorist attacks of September 11, 2001. As Professor Jack Goldsmith, former head of the Office of Legal Counsel (OLC), put it, "never in the history of the United States had lawyers had such extraordinary influence over war policy as they did after 9/11." (7) Government lawyers have also been at the forefront of the Bush Administration's effort to expand (or in its view, restore) the powers of the executive branch. (8) Finally, Administration lawyers have been embroiled in controversy after the revelation of their role in the allegedly politicized firing of several U.S. Attorneys in 2005 (9) and in the authorization of likely illegal behavior such as alleged torture of terrorism suspects and warrantless surveillance of Americans. (10)

In addition to government attorneys' growing influence, a number of factors unique to their counseling function weigh in favor of clarifying their role. (11) Government lawyers interpret a vast amount of law, "[f]rom questions as profound as the circumstances under which the United States may commit its troops overseas" to "issues as mundane as when a regulation is deemed 'promulgated.'" (12) These interpretations are rarely subject to judicial review because potential plaintiffs lack standing or because courts apply the political question doctrine. (13) Further, personnel throughout the government rely on these legal opinions, increasing the need that they be correct. (14)

Though the role of government attorneys remains difficult to clarify, lessons from the corporate accounting scandals of 2001-2002 can provide guidance. In that period, auditors and attorneys failed to prevent fraudulent conduct, spurring a series of reforms. The American Bar Association (ABA) adopted a new version of Rule 1.13 of the Model Rules of Professional Conduct, (15) which affirmed that a lawyer for an organization must view the organization, rather than its officers, as the client and imposed a duty to report potential violations of the law to the organization's leaders. (16) These reforms embraced a view of attorneys as gatekeepers, amplifying their power to halt malfeasance by decisionmakers and prevent harm to the client or to innocent third parties. Though this duty extends to government attorneys in theory, the ABA left the matter open by failing to define the relevant client. (17)

This Note argues for a definition of the client on three levels: the President, the presidency, and ultimately, the public through their representatives in Congress. Under this hierarchy, the attorney primarily has a duty to advance the aims of the current President, but in cases of conflict, the duty to serve the public interest predominates. Part II discusses past attempts to define the client and duties of the government attorney and argues that they have failed to advance a satisfactory model. …

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