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Supervising role brings specific legal obligations

By Diane Karpman

Diane Karpman

Someone suggested I was deceiving you by stating that Attorney General Alberto Gonzales was a “central figure” in creating the torture memo. These days, “deceit” is one of those words with a slippery meaning. In my opinion, “deceit” occurs when the government purchases “fake news.” When you are watching Jon Stewart or Saturday Night Live, at least you know it’s fake news. Freedom of the press is a core principle we are exporting, but the press is not free if their opinions are bought. The suggestion raises an interesting issue, because Alberto Gonzales did not actually write the memo. He supervised the production of a number of legal memoranda that shaped the administration’s policies.

What are a lawyer’s obligations when acting in a supervisorial role, as opposed to being a subordinate? The Official Discussion of Rule 3-110, which is inferentially a statement of our duty of competency, states that the obligation includes “the duty to supervise the work of subordinate attorney and non-attorney” staff. Subordinates are historically less blameworthy and often attempt to rely upon the “superior orders doctrine,” which was rejected in the post-World War II war crimes trials held in Nuremberg. Usually, the superior orders defense is a justifiable argument in the military, where unless the original order was “manifestly illegal,” disobedience can lead to charges of insubordination. Since subordinates are not the moving force, they often incur less liability.

For example, in Sarbanes-Oxley, subordinates can be off the hook with the SEC if they report evidence of a material violation to the supervising lawyer (ยง205.5 (c)). Many subordinates are attempting to assert this defense in the current spate of corporate trials. In WorldCom, even chief executive Bernie Ebbers tried to use the “idiot defense,” which the jury rejected. The policy supporting lesser sanctions for younger lawyers is questionable, and is contrary to the overarching theme of our rules, which impose personal accountability on everyone. Personal responsibility is the lodestar of FRCP 11, which holds that every lawyer personally certifies any pleadings filed. That acts as an incentive for lawyers to ask difficult questions.

Incidentally, lawyers cannot “outsource” their professional duties. Do not naively dream that delivering your Xerox to Kinko’s, or sending work to Bangalore, relieves you of your supervisorial obligations.

Attorney General Gonzales (as White House counsel) asked the Office of Legal Counsel, which provides legal advice to the president, for a legal opinion. Asking if proposed conduct is within the parameters of the law is a typical client inquiry. After all, that is why our clients hire us. Nevertheless, sometimes, how a question is asked can give the lawyer a sense of what answer a client is looking for. According to folklore and some critics, Chief Justice Earl Warren would convene the Supreme Court conference, close the door and, in effect, say, “This is the result we want to reach. Now, how do we get there?”

One last bit of Americana: President Harry Truman, a high school-educated former haberdasher who assumed the presidency during a perilous time, had a sign on his desk that read: “The buck stops here.”

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