Can a lawyer represent a Guantanamo Bay detainee and agree to a court protective order that bars sharing classified material with the client?

Plain-English summary

The inquiring lawyer asked whether agreeing to a federal court's protective order and memorandum of understanding governing access to classified national-security records would conflict with the Rules of Professional Conduct if he represented detainees at Guantanamo Bay. The order, described in In re Guantanamo Detainee Cases, 344 F. Supp. 2d 174 (D.D.C. 2004), barred counsel from disclosing classified documents to anyone, including the client, without further order of the court, and restricted counsel's access to the detainee client.

On RPC 1.4 (keeping a client reasonably informed), the opinion reasons that the court had to choose between total nondisclosure and limited disclosure subject to further order, and that because the order can be modified on motion to permit counsel to use any document vital to the representation, it is a reasonable accommodation of competing interests. The opinion concludes that obeying the nondisclosure order would not by itself violate RPC 1.4, so the lawyer would not have to decline the representation on that ground; the client must still be informed of the limitation. It frames the duty to obey a lawful court order through RPC 8.4(i) and (j) and the Restatement of the Law Governing Lawyers, section 105.

On RPC 1.7(b), the opinion addresses the lawyer's concern that his own potential liability for sanctions for violating the order could create a personal-interest conflict. It states that if the lawyer does not believe he can represent the client without an adverse effect from his own interests, he must decline; but nothing inherent in the confidentiality order necessarily prohibits the representation. Because counsel can move to modify the order if information vital to the defense surfaces, signing off on the order, with the client's informed consent after full disclosure, would not violate RPC 1.7(b).

In practice

Under this opinion, and under the Washington rules as they stood at the time, a lawyer may agree to a court protective order that limits disclosure of classified material to the client and limits client access, provided the lawyer intends to comply with the order and the client gives informed consent to those limitations after full disclosure. The opinion treats obedience to a modifiable court nondisclosure order as consistent with RPC 1.4 rather than a ground to decline the matter, and treats the lawyer's own exposure to sanctions as a personal-interest factor the lawyer must evaluate under RPC 1.7(b) before agreeing.

Common questions

Q: Does signing a court order that bars sharing classified records with the client violate the duty to keep the client informed?

A: The opinion concludes it does not by itself violate RPC 1.4. It reasons that the order is a reasonable accommodation because it can be modified on motion to release any document vital to the representation, and the client must still be told about the limitation.

Q: Does the lawyer's own risk of sanctions for breaching the order create a disqualifying conflict?

A: The opinion frames this as a personal-interest question under RPC 1.7(b). If the lawyer does not believe he can represent the client without an adverse effect from his own interests, he must decline; otherwise, the opinion finds nothing in the confidentiality order that necessarily prohibits the representation.

Q: What must the lawyer do before agreeing to the protective order?

A: The opinion concludes the lawyer may sign the memorandum of understanding only if he intends to abide by it and the client consents to the limitations after full disclosure.

Background and rules framework

The opinion interprets Washington RPC 1.4 (Model Rule 1.4; keeping a client reasonably informed and complying with reasonable requests for information) against a lawyer's duty to obey a lawful court order, which it grounds in RPC 8.4(i) and (j) (Washington misconduct provisions addressing acts that reflect disregard for the rule of law and willful disobedience of a court order) and the Restatement of the Law Governing Lawyers, section 105. It applies RPC 1.7(b) (Model Rule 1.7; the personal-interest branch of the concurrent-conflict rule), under which a lawyer may not represent a client if the representation will be materially limited by the lawyer's own interests unless the lawyer reasonably believes the representation will not be adversely affected and the client consents in writing after consultation and full disclosure.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.4 / Washington RPC 1.4 (keeping a client reasonably informed)
• Model Rule 1.7 / Washington RPC 1.7(b) (representation materially limited by the lawyer's own interests; client consent after full disclosure)
• Model Rule 8.4 / Washington RPC 8.4(i), (j) (disregard for the rule of law; willful disobedience of a court order)

Cases:

• In re Guantanamo Detainee Cases, 344 F. Supp. 2d 174 (D.D.C. 2004), source of the protective order and access limitations the opinion analyzes

Other references:

• Restatement of the Law Governing Lawyers, section 105 (duty to obey a court order)

See also

• WA Ethics Op. 1359: Disclosing Police Reports to a Criminal Defendant
• WA Ethics Op. 2154: Referring an Estate Client to a Spouse's Broker

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1591

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

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.