{"id":9579,"date":"2025-12-01T17:51:24","date_gmt":"2025-12-01T22:51:24","guid":{"rendered":"https:\/\/latinamericasecurityreport.com\/?p=9579"},"modified":"2025-12-01T17:51:24","modified_gmt":"2025-12-01T22:51:24","slug":"professional-responsibility-and-the-boat-strikes","status":"publish","type":"post","link":"https:\/\/latinamericasecurityreport.com\/?p=9579","title":{"rendered":"Professional Responsibility and the Boat Strikes"},"content":{"rendered":"
Military justice image (via Getty Images)<\/figcaption><\/figure>\n

The lethal boat strikes in the Caribbean and eastern Pacific have understandably received a great deal of attention, despite the fact that the text of the central document\u2014an extensive legal analysis prepared by the Office of Legal Counsel (OLC) at the Justice Department\u2014remains under wraps. The failure to publicly release the opinion comes despite comparable analyses of other missions (e.g<\/i>., Syria, Libya) having been released not long after their preparation. Operational details and other classified information can be redacted, but eventually, this one too will become public, either voluntarily, through congressional pressure, or in response to a Freedom of Information Act request<\/a>. Similarly, legal analyses prepared within the armed forces may become public at some point. Even so, it is not too early to begin to unpack the implications of this operation from the standpoint of lawyers\u2019 professional responsibility. <\/p>\n

Recent news accounts indicate<\/a> that the staff judge advocate for Southern Command had reservations about the lawfulness of the boat strikes.There is also reason to question whether<\/a> military lawyers were instructed to limit their advice to specific questions and assume asserted facts or the legality of other questions as resolved. The Washington Post<\/i> reports<\/a> an anonymous administration official saying that there was no dissent about the proposed strikes either among Pentagon lawyers or on an eight-member \u201crestricted\u201d interagency legal panel. The same Post<\/i> story reports that government attorneys who raised concerns about the legality of the strikes were subsequently removed from their posts. As further information becomes available, a definitive examination of the professional responsibility dimension of the operation will be feasible. Such an examination will be important for accountability purposes, the identification of lessons learned, and training of junior, mid-career, and senior military lawyers as well as commanders. <\/p>\n

Changes in the applicable rules of professional responsibility may prove to be warranted, especially since important operations such as the current one are likely to involve judge advocates from different branches, each of which has its own rules, which are not uniform. (The service rules are available online and in LexisNexis\u2019s Military Court Rules of the United States<\/i><\/a> (Matthew Bender & Co. 11th ed. 2025)). One possible outcome may be the development of a single set of professional responsibility rules. Another is an update of the Army\u2019s Professional Responsibility Deskbook<\/i><\/a>, the latest publicly available edition of which was issued before the most recent revision of the Army\u2019s March 26, 2025 Rules of Professional Conduct for Lawyers<\/a>.<\/p>\n

Just Security<\/i> has kindly run a hypothetical legal review<\/a> of the boat strikes operation that one of us recently prepared. It refers to the \u201crequirement for principled, candid, and independent legal advice\u201d by judge advocates. These uniformed lawyers must, by statute, provide \u201cindependent legal advice to commanders.\u201d As that review notes, an official comment to the Army rules, for example, requires judge advocates \u201cto give an honest opinion about the actual consequences that appear likely to result from a client\u2019s conduct.\u201d Additionally, those rules require that a lawyer \u201cexercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors that may be relevant to the client\u2019s situation.\u201d<\/p>\n

The services\u2019 professional responsibility rules raise important issues. A starting point must be the identification of the client. For judge advocates, except when assigned to represent an individual servicemember before a court-martial or board or in connection with an equal opportunity matter<\/a>, or when providing authorized legal assistance in connection with a servicemember\u2019s \u201cpersonal civil legal affairs,\u201d<\/a> the client is the service branch, rather than any individual commander or command. In practice, to be sure, commanders consider the Staff Judge Advocate as \u201ctheir\u201d lawyer\u2013and vice versa \u2013 but that is not the true legal relationship. This can have important consequences with respect to such matters as the duty of loyalty and the duty of confidentiality.<\/p>\n

Setting aside the client-identity issue and its implications, numerous provisions of service professional responsibility rules may bear on the interaction between judge advocates and commanders in connection with the boat strikes. Consider, for instance, this passage from the Army\u2019s Rule 1.2(d), which slightly modifies the parallel provision<\/a> of the ABA Model Rules of Professional Conduct:<\/p>\n

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal and mora<\/b>l consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law. (Emphasis added.)<\/p><\/blockquote>\n

What\u2019s different between the two? The Army, consistent with Rule 2.1, has inserted the words \u201cand moral\u201d between \u201clegal\u201d and \u201cconsequences.\u201d The Navy\u2019s 2015 rule<\/a> makes the same alteration, while the Air Force\u2019s 2018 rule<\/a> does not. The addition is wise and recognizes the fact that a lawyer is not merely a technician or notary but a source of insights that may run larger and deeper.<\/p>\n

The prohibition on counseling the commission of an offense seems obvious. It requires that the lawyer \u201cknow[]\u201d the conduct at issue would be criminal, as opposed to possibly criminal. How would this apply if, for example, the lawyer is strongly of the view that a particular mission \u2013 the boat strikes, say \u2013 is unlawful because it constitutes a use of lethal force that Congress has not authorized, is not in response to an imminent invasion, and on paper at least would entail unjustified homicide? If the lawyer is personally confident of his own judgment, does he have a duty to advise the client not to undertake the mission? If higher authority asserts that it has reached a different legal conclusion, can the lawyer still \u201cknow\u201d that the course of conduct is criminal? What if he recognizes that the question of lawfulness is a close one? Does the answer change if the lawyer has been denied access to the underlying legal analysis from higher headquarters? <\/p>\n

At the very least, the quoted language from the rule suggests at the end that the lawyer need not simply take the unavailability of the superior authority\u2019s legal analysis as a given. Must the lawyer exercise the option the rule affords to encourage the client to \u201cmake a good faith effort\u201d to pin down the lawfulness issue by asking to examine the superior\u2019s legal analysis? Good faith efforts do not require threatening to disobey or to quit, but surely it contemplates making a formal request with a suitable explanation. The rule imposes no duty on higher echelons that receive such a request to honor it, but to the extent that such a request is expressly permitted by the rule, it would be wrong to take umbrage at it or treat it in any way as irregular or inappropriate. Longstanding service tradition<\/a> contemplates that line officers may and in some circumstances should query a course of action they believe to be unwise or unlawful. Judge advocates have, if anything, a higher duty in this respect.<\/p>\n

A lawyer may seek to withdraw if \u201cthe client persists in a course of action involving the lawyer\u2019s services that the lawyer reasonably believes is criminal,\u201d according to the ABA rule<\/a> and the armed services\u2019 rules as well. This sheds some light on what it means when the rules elsewhere refer to the lawyer \u201cknow[ing]\u201d the client\u2019s course of action is unlawful. There is a clear tension between the two. The rules do not resolve that tension. <\/p>\n

Given the gravity of a lawyer effectively facilitating the commission of a crime, the less exacting \u201creasonably believes\u201d test should be the standard. The rules also permit withdrawal when \u201cthe client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.\u201d That might be a wild card where a judge advocate had grave (but not legal) doubts about an operation. A judge advocate may not be as free to \u201cfire the client\u201d as these provisions imply and as a private practitioner is free to do; Army Rule 1.16(c) provides that \u201c[w]hen ordered to do so by \u2026 competent authority, a lawyer shall continue representation notwithstanding good cause for terminating the representation.\u201d The associated comment (cmt. 10) offers a little comfort: \u201cThe decision by one authority to continue representation does not prevent the lawyer from seeking withdrawal from other competent authority.\u201d The Navy has a similar rule. A lawyer with scruples against a proposed course of action may thus at least ask higher authority to overturn a subordinate\u2019s refusal to release that lawyer from a matter. If a request to withdraw is denied, of course, the lawyer may seek separation from the service, which may or may not be granted. What is clear is that making such a request does not violate the rules of professional responsibility and cannot be the basis for professional disciplinary action.<\/p>\n

To be sure, \u201c[t]he fact that a client uses advice in the course of action that is criminal or fraudulent does not of itself make a lawyer a party to the course of action,\u201d as the Army rules observe.  The same rules also observe that \u201c[t]here is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.\u201d This seems obvious enough but drawing the line between the one and the other may be a challenge where the entire mission may be legally flawed in some fundamental way. Such a lawyer might not be violating professional responsibility rules, but remaining on the planning staff that continues to put together the order that results in illegal activity could theoretically render the lawyer criminally culpable as an accomplice or co-conspirator.<\/p>\n

If, as suggested above, judge advocates were instructed not to concern themselves with important aspects of the operation, such as whether it was lawful from the jus ad bellum perspective, a question would arise as to whether this was a permissible limitation on the scope of the representation, permitted under Rule 1.2, or in tension with the judge advocate\u2019s broad mandate to advise regarding legal and moral aspects. The Army rules state that \u201c[g]enerally, the subject-matter scope of an Army lawyer\u2019s representation will be consistent with the terms of the assignment to perform specific representational or advisory duties.\u201d If the terms of reference include such a limitation, the rule imposes on the attorney a duty \u201cto inform clients at the earliest opportunity of any limitations on representation and professional responsibilities of the lawyer towards the client.\u201d Good practice is to memorialize that disclosure in writing and preserve it against the possibility that it may become important down the road.<\/p>\n

Finally, judge advocates will want to be aware of Rule 5.2, which concerns the responsibilities of subordinate lawyers. It provides that \u201c[a] lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.\u201d This seems to be directed at disagreement within a single legal office, but that is analogous to disagreements between judge advocates at higher and lower echelons. In our view, judge advocates are not relieved of their many obligations (e.g<\/i>., candor, competence, diligence, due care) simply because some judge advocate or other person at a higher echelon directed them to do or not do something. Assuming the analogy is a fair one, it may be comforting with regard to the rule against counseling conduct the lawyer knows to be criminal that Army Rule 5.2 states that \u201c[a] subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer\u2019s reasonable resolution of an arguable question of professional duty.\u201d The corresponding Navy rule applies that principle as well but wisely requires that the supervisory attorney\u2019s opinion be not only reasonable, but also in writing. As a comment to that rule notes, \u201cTo minimize the chances for misunderstanding, advice in questionable cases should be issued in writing.\u201d<\/p>\n

At the end of the day, judge advocates dealing with missions whose lawfulness may be debatable may face challenging issues in reconciling their duty to \u201cexercise independent professional judgment\u201d and their role in a complicated governmental hierarchy with numerous civilian and uniformed actors. Essential tasks for conscientious officers will be to study closely the pertinent rules of professional responsibility, determine their potential application, and seek expert assistance where necessary, to include requesting formal ethics opinions, although that may be a challenge when the facts of the proposed mission remain highly classified and time is of the essence. A formal opinion will contribute to operations that are lawful, ethical, successful, and deserving of public confidence, and should be sought when circumstances permit and doubts about a mission\u2019s legality are substantial. <\/p>\n

At least in the Army, interpretations of the rules of professional responsibility may be obtained from a Professional Conduct Council. According to Army Rule 9.1(e):<\/p>\n

Army lawyers are encouraged to first seek interpretations of these rules from their legal supervisory chain.  Any lawyer subject to these Rules, however, may request an opinion from the Council. To do so, the lawyer must submit a complete description of the factual situation that is the subject of contention under the Rules, subject to Rule 1.6 and Rule 8.5(j), a discussion of the relevant law, and the lawyer\u2019s opinion as to the correct interpretation. For Army lawyers, the request must be submitted through their legal supervisory chain and the professional responsibility committee established by the lawyer\u2019s Senior Counsel. . . .<\/p><\/blockquote>\n

Importantly, Rule 9.1(g) provides that written opinions of the Professional Conduct Council \u201cshall be open to the public.\u201d<\/p>\n

What is not acceptable is for an officer who harbors substantial professional misgivings about a proposed mission to remain silent in the face of some other lawyer\u2019s faulty, unexplained, or irresponsible opinion. Silence is not a hallmark of the exercise of independent judgment. Neither is failing to commit one\u2019s professional assessment to writing. Remaining silent or in the shadows will be viewed as acceptance down the road, possibly after a mission has gone sideways.<\/p>\n

When the dust settles and more is known about the boat strikes, we hope light will be shed on the extent to which the rules of professional conduct came into play in the operation and whether they proved an aid or a hindrance to the lawyering process and command decision-making.<\/p>\n

– Eugene R. Fidell<\/a>, Daniel Maurer<\/a> and Steven J. Lepper<\/a>, Published courtesy of Lawfare.<\/em> <\/p>\n","protected":false},"excerpt":{"rendered":"

The lethal boat strikes in the Caribbean and eastern Pacific have understandably received a great deal of attention, despite the fact that the text of the central document\u2014an extensive legal analysis prepared by the Office of Legal Counsel (OLC) at the Justice Department\u2014remains under wraps. The failure to publicly release the opinion comes despite comparable…<\/p>\n","protected":false},"author":124,"featured_media":9580,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"ngg_post_thumbnail":0,"fifu_image_url":"https:\/\/i0.wp.com\/www.justsecurity.org\/wp-content\/uploads\/2017\/04\/Base-Legal-serving-the-law-and-Shaw-120806-F-PY888-005.jpg?w=3000&ssl=1","fifu_image_alt":"","footnotes":""},"categories":[182],"tags":[],"class_list":["post-9579","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-security-public-safety"],"_links":{"self":[{"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=\/wp\/v2\/posts\/9579","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=\/wp\/v2\/users\/124"}],"replies":[{"embeddable":true,"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=9579"}],"version-history":[{"count":1,"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=\/wp\/v2\/posts\/9579\/revisions"}],"predecessor-version":[{"id":9581,"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=\/wp\/v2\/posts\/9579\/revisions\/9581"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=\/wp\/v2\/media\/9580"}],"wp:attachment":[{"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=9579"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=9579"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=9579"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}