For transactional lawyers opinion letters are a familiar part of corporate – commercial practice. Their purpose is to provide “comfort” on a legal issue central to the transaction by using the reputation of the firm issuing the opinion letter to assure a non-client that for example, a lender has a perfected, valid, first position security interest in the borrower’s assets while reducing the liability of the firm issuing the opinion letter as much as possible.
Opinion letters also play a role in the law of war. That was certainly true during the administration of George W. Bush.Think of the now highly contentious opinion of John Yoo authorizing “enhanced interrogation” techniques. As described in a new book, Power Wars: Inside the O’bama’s Post 9/11 Presidency, Pulitzer Prize winning NYT reporter Charlie Savage, describes how President Obama, like George W. Bush, relied on legal opinions to shape his administration’s policies in the war on terror. For example, in a recent NYT article, Savage describes four opinion letters authorized the killing of Osama bin Laden. The title of the article is “How 4 Federal Lawyers Paved the Way to Kill Osama bin Laden.” It would be interesting to review those opinion letters to examine the legal basis for their conclusions. It may be that the basis for those opinion letters was, at least in part, the law of perceived necessity, the necessity being the demands of national security. In a time of war and armed conflict it is fair to observe that the law is often malleable (think of the Supreme Court’s decision in Korematsu).If that is the case one may fairly ask in a time of war “what is law?” and “what is a lawyer’s responsibility when asked to interpret law for the Commander-in-Chief?” Anyone interested in thinking about those questions may be interested in Jack Goldsmith’s The Terror Presidency: Law and Judgment Inside the Bush Administration. See also the Wikepedia entry for “The Constitution is not a suicide pact,” and Not a Suicide Pact: The Constitution in a Time of National Emergency, by Richard A. Posner.
Opinion letters,whether in the context of corporate-commercial transactions or in the context of the war on terror, are examples of how much the judgment of lawyers matter.
For an interview with Brendan Sullivan on prosecutorial misconduct click here.
Judge Blue’s recent summary suspension of defense lawyer John Williams for twenty days as a result of alleged misconduct during a criminal trial has raised the question of whether prosecutors who have violated the rules are ever subject to discipline. If anyone knows of instances in which prosecutors have been subject to professional discipline, kindly let me know. Thanks.
In an article in the Connecticut Law Tribune, by comparing law to other professions, CBA President Mark DuBois suggests that the legal profession in Connecticut should be embarrassed by its refusal to adopt CLE standards.
I suggest that the CBA adopt voluntary CLE standards along with a program allowing lawyers who meet those standards to certify (and advertise) that they have done so. The program would permit lawyers to decide what constitutes CLE and require them to keep a record of the CLE programs attended whether in person or online, including the date, the location, the length, the topic and the provider.
Perhaps the CBA can move beyond being a trade association by offering its members the opportunity to voluntarily and publically commit to embracing core principles of professional responsibility in exchange for the ability to advertise their commitment to those core principles.
More thought required. Comments welcome
It is no secret that law schools across the country are searching for ways to be of greater value in a highly competitive job market. Recently, President Obama suggested one way for law schools to do that: do less. Specifically, as reported by the Economist (August 31 – September 6, 2013 issue – North America edition – at page 24, the President said “This is probably controversial to say, but what the heck.” ..”[L]aw schools would probably be wise to think about two years instead of three.”
There is an old saying about law school. The first year they scare you to death. The second year they work you to death. And the third year they bore you to death. To the extent there is some truth in that saying the price of the third year is far too high and it should be dropped.
The legal profession, including law schools, is on a forced march to create value and to make clear to clients (and to prospective students) that legal services, including legal education (which must teach more about rendering legal services), are worth the investment. Perhaps the President is on to something when he suggests that law schools create greater value by charging less and and spending less time before granting a degree. Might the same concept apply to law firms? It is always a challenge to know when enough is enough in terms of time spent on a client matter. Past a certain point clients won’t pay. But before a certain point one can not do a first rate professional job. Law schools need to focus on teaching students how to render legal services efficiently on a cost effective basis. If law school graduates entered the marketplace as engines of efficiency, including using technology effectively, they would be of value to firms that have clients but that may not have cutting-edge knowledge of how to serve their clients most efficiently. The focus must be on creating value for clients. The rest is a waste of time and money.