Professional Responsibility Compliance and National Security Attorneys: Adopting the Normative Framework of Ethical Legal Process

Keith A. Petty, U.S. Judge Advocate General's Corps

Abstract

In 2010, a Department of Justice report cleared the authors of the infamous “torture memos” of professional misconduct, but was highly critical of their application of ethical norms. This episode underscores the lack of clarity in professional responsibility obligations of government legal advisors. While methods such as identifying the client and defining the role of the attorney have been used to facilitate adherence to ethical norms, evidence demonstrates that these approaches fail to overcome external pulls from ethical compliance during times of crisis.

This article argues that ethical compliance failures by government legal advisors call for a fundamental reexamination of the approach to professional responsibility in the national security context. In particular, this article suggests for the first time that compliance theory is useful to critically evaluate the behavior of legal advisors in relation to ethical norms. Based on this analytical model, I propose the adoption of a three-step approach—the ethical legal process. This process of interaction, interpretation, and internalization encourages organizational measures to facilitate individual compliance and is consistent with the fluid nature of legal advice in crisis situations. Application of the ethical legal process would have averted the deeply flawed analysis of the OLC torture memos, and will prepare future legal advisors to uphold professional standards even in the most trying times.