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Risk managers in boardrooms and war rooms

Diane Karpman

By Diane Karpman

The role of lawyers in our society expands daily into realms many of us never anticipated. This is one reason why the purpose of the ABA Task Force on the Model Definition of the Practice of Law might be considered slightly myopic. Defin-ing what we do may confine us in a "box."

The Department of Justice and the Federal Trade Commission consider defining the practice of law "not in the public interest." Lawyers are valued because they "think outside the box." The practice of law widens to meet new and continually evolving needs of society.

For example, lawyers as "legal advisors" are responsible for keeping the "collateral damage" occurring as a result of military actions directed against targeted enemy forces within acceptable limits. Lawyers are risk managers whether in the boardroom or the war room. Lawyers draft the rules of engagement; determine appropriate target selection; evaluate proper munitions; and factor in principles involving the law of armed conflict, primarily the Hague and Geneva conventions.

During Desert Storm, every level of command had legal advisors. Legal advisors "scrubbed" targeting of statues of Saddam Hussein, which may have been classified as "cultural objects." In Afghanistan, lawyers were deployed to naval task groups, air detachments, and land and special forces. "Decisions were impacted by legal considerations at every level, [the law of war] proved invaluable in the decision-making process." (Gen-eral Colin Powell, Chairman, U.S. Joint Chiefs of Staff, Conduct of Persian Gulf War, Final Report to Congress, April 1992.)

Military legal advisors may face some of the same ethical issues that confront lawyers of publicly traded corporations (Enron et al.), that challenge health care lawyers when dealing with illegal referrals, and that governmental lawyers often encoun-ter. These military advisors may be forced to counsel their commanders that their conduct fails to comply with the rules of engagement, just as the corporate lawyer might have to advise the CEO to restate the corporate earnings.

During the mental acrobatics of applying the law to our clients' beha-vior, analyzing competing strategies and evaluating the worse case scenario, we sometimes forget that our clients may want us to curb their enthusiasm and to provide obstacles. Sometimes clients suggest the outrageous or idly speculate "what if," in order for us to be their legal compass. Other times they refuse to heed our level-headed advice.

"Collateral damage" is not unique to war. It can occur in the corporate environment or in a family. Lawyers facing a client who is bound and de-termined to select the wrong course of conduct may be forced to withdraw. When presidential advisors depart, this is often labeled as "wanting to spend more time with the family."

This is intended as neither an en-dorsement nor a condemnation of war. I don't have a clue how you would withdraw during a military engagement considering issues involving the chain of command on a desert somewhere outside of Baghdad. However, I know our citizen soldiers and law-yer soldiers are doing the best job they can.

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