Ethics, legitimacy, and lawyering: how do international lawyers speak truth to power?

Position:Proceedings of the 101st Annual Meeting of the American Society of International Law: The Future of International Law - Discussion

The panel was convened at 10:45 a.m., Friday, March 30, by its moderator, Thomas Franck of New York University Law School, who introduced the panelists: Richard Bilder of the University of Wisconsin Law School; Kathleen Clark of Washington University School of Law; Ben Davis of the University of Toledo College of Law; and William H. Taft IV of Fried, Frank, Harris, Shriver & Jacobson LLP.

How do we define the responsibility of international lawyers in advancing the legitimacy and fairness of international law? How have international lawyers historically participated in public discourse on the applicability of international law to political controversies of the day ? What role can and do lawyers' associations play in expanding awareness of international law and its implications? How should international lawyers work, both in the academy and in practice, in the face of governmental disregard of legal norms? Should "relevance" be defined in terms of affiliation with power?

Professor Thomas Franck introduced the panelists and explained that they had been asked to engage in a Socratic discourse rather than prepare papers. The four different hypotheticals concern ethical dilemmas for lawyers: 1) a lawyer in a corporate setting; 2) a lawyer in the International Committee of the Red Cross; 3) a lawyer in the Department of State; and 4) the General Counsel at the United Nations.

HYPOTHETICAL ONE

An American corporation has negotiated an agreement with the government of the Sudan to explore with an option to exploit a potentially large oilfield in the Darfur region. We are the general counsel of the oil company in question. The counsel has not been involved too directly in the negotiations for the agreement. The counsel has been asked to vet the agreement that has been reached by the oil company to see if it is legally acceptable before it goes, pursuant to the articles of incorporation, to the Board of Directors of the company for final approval. The general counsel has heard there have been some payments of funds to members of the government of the country and obvious ethical problems.

Professor Clark stated that given the bribery dimension, the lawyer would undertake due diligence regarding potential violations of the Foreign Corrupt Practices Act ("FCPA"). (1) If the lawyer is licensed by a state that has adopted the ABA Model Rules, the rule concerning a lawyer's obligation to an entity client comes into play. (2) When the lawyer learns of a violation of law that could be imputed to the entity and that could harm the entity, the lawyer has an obligation to go to the very highest authority of the entity to correct the situation. (3) Moreover, a new provision to protect entities from unfaithful servants provides that if the very highest authority of the entity does not correct the situation, the lawyer may disclose information outside the corporation, even if no other confidentiality exception applies. (4) If the lawyer reasonably believes that a bribe has been paid, then the question is how to mitigate the harm to the corporation. Should the corporation withdraw from the contract, make disclosures, or arrange to have the contract re-bid? If the Board goes ahead with the contract, the lawyer must be guided by the duty to prevent harm to the corporation. If disclosure outside the corporation would prevent the harm, then the lawyer can disclose to an outside authority.

In a response to a modification of the hypothetical in which a citizen gets wind of the contract and the bribery and speaks with a lawyer in the community without any ties to the entity ("total outsider lawyer"), Professor Davis stated that the lawyer could tell the citizen to feel free to bring the matter to the attention of local authorities or press. One can do everything one can do as a citizen. Another possible tack would be to put the citizen in contact with organizations who work in Darfur or the Center for Constitutional Rights to see what might be done for example in the Federal District Court in the city. If the general counsel was a friend and this would be a significant part of the company's business, the advice would be to have the general counsel start seeking employment somewhere else.

Professor Franck then presented the second hypothetical.

HYPOTHETICAL TWO

The International Committee of the Red Cross (ICRC) has made an onsite visit to a prison camp in the State of Atlantis. In the course of the after dinner tour of the local prison, inadvertently someone opens the wrong door and many people are hanging from hooks in the ceiling and other things the host state had not wanted to show the visitor that are perfect evidence of a concerted practice of torture. The onsite visiting team returns to Geneva and reports this. You are the General Counsel of the ICRC and are made aware of this concerted practice of torture. You go to the head of the Committee and believe that, in the absence of any ameliorative response of the government, you may have an obligation to go public with this and maybe we should put this on the table as part of our negotiations with the country. The head says that, no, we can not do this as that is against the rules of the ICRC. So negotiations go forward with the government bilaterally for a month, and the government denies the team saw anything of the sort and nothing of this kind happens in Atlantis. Now you come to the crunch.

Professor Bilder said that it is well-known that the ICRC has a deeply and strongly held position that it can best ensure its access to detainees and its ability to persuade governments to adopt humanitarian measures towards detainees by maintaining a policy of confidentiality, discussing its observations and concerns only with the authorities involved, and that it believes going public with its findings may risk serious damage to its effectiveness. In Professor Bilder's opinion, this ICRC policy is ethically defensible and consequently he did not see any ethical issue or professional conflict in the General Counsel's going along with it. Indeed, the General Counsel was presumably aware of this long-established policy when he or she applied for the job and, if he or she disagreed with it, should arguably either not have accepted the job or should now consider resigning.

Professor Franck raised the issue of whether when any lawyer applies for any job with any entity he/she does so with an awareness of the fact that there is an obligation not to step outside the institutional framework if in disagreement with institutional policy. He asked, "Aren't you saying that anybody who has any lawyer's job is bound to keep quiet if terrible things occur or thinks they occur or if he thinks?"

Professor Bilder again noted that, in the hypothetical as posed, the ICRC was not, in his opinion, doing anything illegal or unethical. But, in any event, a lawyer is not required to keep quiet if terrible things are occurring or likely to occur. Under relevant rules of professional ethics, every lawyer has a duty to give competent advice and it is well established that ethical concerns can play a part in that advice. Moreover, a lawyer cannot counsel a client to commit or participate in the commission of a crime. And finally, as previously said, if a client or employer is doing something the lawyer personally considers unethical, the lawyer always has the option of quitting.

Mr. Taft said that in the case of the ICRC, this is a core feature of the ICRC's operation. They will not be able to do anything--they would never know of these events--if they did not have their policy of confidentiality. You buy into that when you become part of their organization. And you are not without some benefit. The benefit is that at least you do get in, you do get to be able to talk to the country about it, and you get to talk to the ICRC about it. But there is a limit to how far you are going to be able to go when you take that post. You have agreed to that before you came into this situation and you probably should stick with it.

Professor Clark asked whether after the lawyer quits the ICRC, may the lawyer reveal this to the public or Human Rights Watch or some other organization or should the lawyer keep silent. Should the lawyer resign quietly or resign in protest? (5)

Mr. Taft stated that the lawyer has bought into the whole confidentiality arrangement and that he should stay silent. You bear in mind you are not the only person who is ever going to know about this or be able to do something about this. You are in a system which is able to do some things about it and that's good or you think that's good. You are just not able to do everything about it.

Professor Davis agreed with those who say that when you stay inside, you have to respect this policy because of the unique nature of the core role. The question then becomes the level of supervision, analysis, intensity put into looking at what this country is doing and the dialogue that goes on there. You can go to the wall with looking and pushing and insisting inside of your role to try to adjust things. Second, in this dynamic of information coming out--without you doing it yourself--information gets to the Internet in mysterious ways even in organizations that try to maintain confidentiality. There may be entities within the country itself that disagree profoundly with what is going on and there will be somebody there who might reveal the information without it being you. Part of your zealousness in pushing this forward may be in encouraging them to see this is a real problem.

Professor Franck said that it might also be worth bearing in mind that if your primary obligation is to the institution that has taken you on board, that the long-term interests of the institution may suffer if the institution is aware (such as the Red Cross being aware of German concentration camps during the war) and it does absolutely nothing but continues to talk to the Germans about...

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