Did Yoo and Bybee Violate Canons of Professional Ethics?

Slate's blog on legal issues.
April 12 2008 6:21 PM

Did Yoo and Bybee Violate Canons of Professional Ethics?

Over at The Nation , Stephen Gillers argues that the Yoo-Bybee torture memos violated canons of professional ethics , in part because Yoo and Bybee were confused about who their client was:

How could two really smart guys authorize torture using "one-sided legal arguments" that have "no foundation" in law? How could they be guilty of a "stunning failure of lawyerly craft"? The sad answer seems to be that they knew what the President wanted and delivered: torture is OK if you call it something else. Detainees are outside the protection of due process and civilized law. The President's authority is close to absolute. Anyway, no court can review him. (On this last point, the Supreme Court disagreed.)

This incompetence is especially serious because of the conduct it enabled. If a private lawyer gave such a lopsided and wrongheaded analysis to a business client, he'd be history. Lawyers advising private clients about to make important decisions (a "bet the company" kind of decision) meticulously analyze all sides of a question so the clients can assess risk and choose wisely.

The client deserved better ...

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Jack M. Balkin is Knight professor of constitutional law and the First Amendment at Yale Law School.