Advisory Opinion: 2134

Year Issued: 2007

RPC(s): RPCs 1.4, 1.7(b), & 8.4

Subject: Representation of Detainees at Guantanamo Bay

I. Overview
The inquiring attorney requests an opinion from the WSBA Rules of Professional Conduct Committee regarding a protective order and memorandum of understanding regarding disclosure of certain national-security records. The requester will be subject to the substantial limitations upon access to these records if and when he represents Guantanamo detainees. See In re Guantanamo Detainee Cases, 344 F. Supp. 2d 174 (D.D.C. 2004). Among the limitations imposed on attorneys for the detainees is a requirement that information regarding classified documents to which they are provided access shall not be disclosed to anyone, including their clients, without further order of the court. See 344 F.Supp.2d at 189-192. In addition, counsel’s access to the detainee/client is restricted, again by order of the court, subject to revision or modification on motion.

RPC 1.4 provides, in pertinent part, that a “lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.” On the other hand, a lawyer has a duty to obey the law, including orders of the court. See Restatement of the Law Governing Lawyers, Sec. 105; RPC 8.4(i) (prohibits “any…other act which reflects disregard for the rule of law”); RPC 8.4(j) (prohibits lawyers from”[w]illfully disobey[ing] or violat[ing] a court order directing him to do or cease doing an act which he or she ought in good faith to do or forbear”).

Given the national security implications of the records revealed to counsel for the detainees under the limited circumstances described in the case cited above, it is apparent that the court had to decide between total nondisclosure of the records at issue or limited disclosure, subject to further order of the court. Because the order is subject to modification on motion to permit counsel to make use of any document vital to the representation, the order appears to be a reasonable accommodation of serious and competing interests. It does not appear to this writer that obedience to the court’s nondisclosure order would ipso facto violate RPC 1.4, such that the requester would have to decline representation of the client. Of course, the client must be informed.

RPC 1.7(b) provides, in pertinent part, that a “lawyer shall not represent a client if the representation of that client will be materially limited by … the lawyer’s own interests,” unless the lawyer reasonably believes that “the representation will not be adversely affected” and the “client consents in writing after consultation and a full disclosure of the material facts.” It appears that the requester believes that his own potential liability for sanctions for violating the court order may create a conflict of interest. If the lawyer does not believe he or she can represent a client without adverse impacts upon the representation due to the lawyer’s own interests, of course, the lawyer must decline representation.

However, there does not appear to be anything inherent in the confidentiality order that necessarily prohibits the representation. As noted above, the lawyer must disclose the limitations placed upon the representation to the client, and obtain the client’s consent. Because the requester may move the court for an order modifying the “Amended Protective Order” in the event that significant information vital to the defense comes to his attention, the order appears to be a reasonable accommodation of competing interests, and the requester’s act of signing off on it would not violate RPC 1.7(b).

It is unclear what, if any, additional provisions of the Rules of Professional Conduct the requester would like to see discussed. The undersigned does not believe any other provision of the Rules would be violated by signing off on an enforceable promise to obey the Amended Protective Order.

II. Conclusion
The requester may sign off on the Memorandum of Understanding, but only if he intends to abide by it, and if his client consents to the limitations placed upon the representation by the Memorandum after full disclosure.

Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Committee on Professional Ethics (CPE) or its predecessors. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law other than the meaning of the Rules of Professional Conduct.