This just in: the Office of Chief Defense Counsel in the Military Commissions asked the National Association of Criminal Defense Lawyers' Ethics Advisory Committee for an advisory opinion on whether defense counsel can comply with Rear Admiral David Woods' order requiring attorney-client mail to be reviewed and remain consistent with their ethical obligations. The committee has now responded, and here is the response.
Some Lawfare readers may think we've been curiously silent on this issue since Ben and Ritika covered the oral argument over it. The reason for the silence is simple: Military Judge James Pohl's order--and the underlying post-hearing briefing--is still not available on the Military Commissions website, despite numerous stories on its content strewn across the web. As soon as the order is released, we will weigh in.
In the meantime, here's the digest of the NACDL opinion:
It is NACDL‘s position, having considered the Commander‘s Orders and NACDL Ethics Advisory Committee Opinions 03-04 (August 2003) and 02-01 (November 2002), and the authorities relied on therein, that it would be unethical for a criminal defense lawyer to abide by the Communications Order and/or Logistics Order issued December 27, 2011 by JTF-GTMO Commander Rear Admiral D.B. Woods because the conditions imposed by those Orders make it im-possible for counsel to provide adequate or ethical representation, or effective assistance of counsel. Defense counsel cannot contract away his or her client‘s rights, including the right to effective assistance of counsel, which includes protection of the attorney-client privilege, and the right to zealous advocacy. Yet, the Orders‘ claims notwithstanding, the clear language of "Attachment A" to both Orders would require counsel to accede to invasion of the attorney-client privilege and abandonment of zealous advocacy in contravention of ethical obligations. Consequently, defense counsel cannot abide by the terms of the Orders and sign "Attachment A" consistent with ethical standards imposed by civilian and military rules of professional conduct absent informed consent of the client. An attorney alone cannot accede to the conditions in the Orders on the client‘s behalf.
Also, the Orders create a conflict between defense counsels‘ duty to not disclose client confidences without the client‘s informed consent and counsels‘ duty to provide competent representation. As a result of the Commander‘s Orders, their ethical obligation requires them to cease meaningful communications with their clients to protect confidences. Lawyers cannot ethically communicate with their clients in a manner that gives third parties access to the communications. This is an impossible situation for an American lawyer and every notion of American criminal justice.
A criminal defense attorney has an ethical and constitutional duty to pursue affirmative means of protecting confidential attorney-client communications from government surveillance and interception, including a duty to challenge the substance of administrative orders that prevent a lawyer from having meaningful communications, and therefore prevent the lawyer from providing competent representation. That includes seeking judicial review and remedies, and/or, if necessary, appropriate protective orders. The "privilege team" proposed by the Orders is, in NACDL‘s view, plainly insufficient to protect the attorney-client privilege and resolve the insoluble ethical problem the Orders present. Nor may defense counsel rely simply on the prospect of post hoc relief provided by the exclusionary rule. Thus, NACDL agrees with the assessment by Chief Military Defense Counsel, Col. Jeffrey P. Colwell, USMC, that the Orders "require Defense Counsel to violate the Rules of Professional Responsibility, placing Defense Counsel in an untenable ethical position." Specifically, the Ethics Advisory Committee finds that:
1. Without the client‘s informed consent, a lawyer cannot communicate with his or her client, or record and preserve communications with the client or create and preserve other written work product, in a manner that allows others to have access to the communications.
2. A criminal defense lawyer‘s avoiding communications and writings that might be accessed by third parties seriously impedes the ability to render competent and zealous representation to carry out the client‘s objectives and otherwise comply with ethical and fi-duciary obligations to render effective representation.
3. In addition to not communicating while the Orders are in place, the lawyer must challenge the Orders in an effort to remove this impediment.