Ethics, Legitimacy, and Lawyering: How Do International Lawyers Speak Truth to Power?
The panel was convened at 10:45 a.m., Friday, March 30, by its moderator, Thomas Franck of New York University Law School, who introduced the panelists: Richard Bilder of the University of Wisconsin Law School; Kathleen Clark of Washington University School of Law; Ben Davis of the University of Toledo College of Law; and William H. Taft IV of Fried, Frank, Harris, Shriver & Jacobson LLP.
How do we define the responsibility of international lawyers in advancing the legitimacy and fairness of international law? How have international lawyers historically participated in public discourse on the applicability of international law to political controversies of the day ? What role can and do lawyers' associations play in expanding awareness of international law and its implications? How should international lawyers work, both in the academy and in practice, in the face of governmental disregard of legal norms? Should "relevance" be defined in terms of affiliation with power?
Professor Thomas Franck introduced the panelists and explained that they had been asked to engage in a Socratic discourse rather than prepare papers. The four different hypotheticals concern ethical dilemmas for lawyers: 1) a lawyer in a corporate setting; 2) a lawyer in the International Committee of the Red Cross; 3) a lawyer in the Department of State; and 4) the General Counsel at the United Nations.
An American corporation has negotiated an agreement with the government of the Sudan to explore with an option to exploit a potentially large oilfield in the Darfur region. We are the general counsel of the oil company in question. The counsel has not been involved too directly in the negotiations for the agreement. The counsel has been asked to vet the agreement that has been reached by the oil company to see if it is legally acceptable before it goes, pursuant to the articles of incorporation, to the Board of Directors of the company for final approval. The general counsel has heard there have been some payments of funds to members of the government of the country and obvious ethical problems.
Professor Clark stated that given the bribery dimension, the lawyer would undertake due diligence regarding potential violations of the Foreign Corrupt Practices Act ("FCPA"). (1) If the lawyer is licensed by a state that has adopted the ABA Model Rules, the rule concerning a lawyer's obligation to an entity client comes into play. (2) When the lawyer learns of a violation of law that could be imputed to the entity and that could harm the entity, the lawyer has an obligation to go to the very highest authority of the entity to correct the situation. (3) Moreover, a new provision to protect entities from unfaithful servants provides that if the very highest authority of the entity does not correct the situation, the lawyer may disclose information outside the corporation, even if no other confidentiality exception applies. (4) If the lawyer reasonably believes that a bribe has been paid, then the question is how to mitigate the harm to the corporation. Should the corporation withdraw from the contract, make disclosures, or arrange to have the contract re-bid? If the Board goes ahead with the contract, the lawyer must be guided by the duty to prevent harm to the corporation. If disclosure outside the corporation would prevent the harm, then the lawyer can disclose to an outside authority.
In a response to a modification of the hypothetical in which a citizen gets wind of the contract and the bribery and speaks with a lawyer in the community without any ties to the entity ("total outsider lawyer"), Professor Davis stated that the lawyer could tell the citizen to feel free to bring the matter to the attention of local authorities or press. One can do everything one can do as a citizen. Another possible tack would be to put the citizen in contact with organizations who work in Darfur or the Center for Constitutional Rights to see what might be done for example in the Federal District Court in the city. …