Thursday, February 16, 2006

Lawyers Investigating Lawyers

The New York Times today reported that the Office of Professional Responsibility, the ethics office of the Justice Department is to investigate the department's lawyers' roles in the NSA eavesdropping program ordered by George W Bush. Although he and his Attorney General consider the listening on citizens' communications to be legal, plenty of others don't, especially as it was done without the issuing of warrants. The investigation is explicitly not about the legality of the eavesdropping, yet the OPR acknowledges that it has to consider if the activities of the NSA were permissible under present law.

If the OPR were to find that its lawyers acted unethically, it would raise an interesting conundrum for the government and the legal profession. There would be a big gap between the behaviour of a government convinced of the legitimacy of its actions and its own lawyers found culpable of unlawyerly activities. Yet it seems as if a distinction is being made between those who are hired to be lawyers and those who are lawyers but carry out other roles such as cabinet member of congressman. Should this distinction be allowed?

Even though lawyers are taught about ethics, little of that appears to linger on after graduation. Ethical compliance becomes a matter of box ticking, rather than philosophising about the morality of action. Law has always been one of the original trinity of professions: law, medicine and the church. It has always had to decide that its members' behaviour not only comply with the law but morality too. The current mode of regulation omits this latter category, perhaps because it can't be measured.

My colleague, Andy Boon, has been trying to reinvigorate the debate on ethics among lawyers in the UK. While it's having some effect in the law school, we don't see much going on in the profession. On hypothesis occurs to me:

Regulation (and thereby morality) have suffered the same fate as much of everyday life, that is they are being increasingly juridified and subject to legal challenge that takes as its base the distinctions between rules, narrowly defined, rather than any principle-based analysis. This I would suggest is the case in the US and to some extent in the UK. Why the difference? In part, it's because the UK regulatory scheme likes the idea of principles rather than rules. But this distinction only occurs in selected areas. Financial control in the UK is not like Sarbanes-Oxley, but less rigid. However, farming regulation is carried out by the minute application of rules without the support of principles. One other distinction we can draw here is that lawyers who will find themselves on the end of financial regulations more than farming ones are better at lobbying/persuading government to impose different duties on them compared to other groups.
Interestingly, we have no equivalent to the OPR that I'm aware of. If we had then perhaps those who laboured on behalf of the UK Attorney General and helped draft the legal justification for entering the Iraq war, could have become the subject of some ethical scrutiny. As it is, there is no possibility of oversight.

Should we then attempt to resurrect ethics or just abandon the project entirely?

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