BOALT: LEGAL PROFESSIONFIRST CLASS: CREATING AND ENDING ATTORNEY CLIENT RELATIONSHIPS

JANUARY 7, 2014

This box will tell you what you need to prepare for each class.

FAQ’s All Students Read

Online Talks 1.1, 1.2, 1.3 Optional

Outline LGL §§ IV(A)-(E) & (H)-(I)

All read

Rules Scope, cmt. [17]; 1.16; 1.18

All read

1.1 Togstad Case All Read; Students with surnames beginning A-G are on call

1.2 Reject Letter to Prospective Client

All Read; Students H-M On Call

1.3 The Defense Will Not Rest

All Read; no cold calls

1.4 Firing a Client Students N-Z on call

The Attorney Client Relationship Lifecycle (Q&A)

This section is about the attorney client relationship lifecycle. Lawyers’ failure to grasp the basics of that lifecycle is the cause of countless errors, unhappy clients, unhappy attorneys, malpractice suits, and disciplinary actions. Unfortunately, the rules don’t have enough coverage of these issues. Read Scope, Comment [17]; MR 1.18, and whatever rules are mentioned at the start of the examples.

FAQs(Q 1.1) What is an attorney-client relationship (ACR)?(Q 1.2) What kinds of attorney-client relationships are forbidden, permitted, encouraged, or mandatory?(Q 1.3) Do any lawyerly duties arise even before the attorney-client relationship is created?(Q 1.4) What is the legal test for the existence of an ACR? (Q 1.5) What is the effect of the creation of an ACR?(Q 1.6) What are the elements that define any particular ACR?(Q 1.7) Under what conditions must or may a lawyer terminate an ACR? (Q 1.8) What is the legal test for the end of an ACR?(Q 1.9) What duties do lawyers owe after the termination of the ACR?

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QUESTIONS

(Q 1.1) What is an attorney-client relationship (ACR)?

The attorney-client relationship is a fiduciary relationship between a principal (the client) and an agent (the lawyer) in which the lawyer represents the client’s legal interests to some person or some social system (e.g., the courts or the market).

(Q 1.2) What kinds of attorney-client relationships are forbidden, permitted, encouraged, or mandatory?

Some ACRs are forbidden. Lawyers cannot counsel or assist a client in the furtherance of a crime or fraud. (MR 1.2(d)) (On the other hand, an attorney may counsel a client about legal consequences of proposed courses of conduct and about the validity, scope, meaning, and application of the law. MR 1.2(d)) Lawyers cannot commence or continue an ACR that would entail breaches of the rules of professional conduct.

Some ACRs are encouraged. Lawyers should aspire to perform pro bono public service by providing legal representation to those who cannot afford to pay for it. (MR 6.1) Lawyers should aspire to represent the defenseless, the friendless, and the oppressed. (See, Cal. Bus. & Prof. Code § 6068(h); Lawyers Oath (appended to the 1908 Model Code of Professional Conduct))

Some ACRs are mandatory. Courts retain their historical power to appoint lawyers to represent clients. (MR 6.2, 1.16(c)) (Such appointments, however, are rare since the advent of public defender offices.) In some countries other than the USA, the so-called cab-rank rule required a lawyer to represent any paying client. In the USA, lawyers have far more discretion of whom they will represent.

Some ACRs are permitted. If a proposed representation would not further a crime or fraud, and if the objectives of the representation are lawful, the lawyer can exercise her personal discretion about whether she wishes to enter into the ACR. That is, under most circumstances commencing an ACR is at the discretion of both client and lawyer. (Note: there can be significant restrictions on a lawyer’s ability to terminate an ACR.) Under MR 1.2, a lawyer’s decision to enter into an ACR is not to be understood as endorsing the client or the client’s objectives. (However, many people morally judge lawyers by their choice of clients.)

(Q 1.3) Do any lawyerly duties arise even before the attorney client relationship is created?

When meeting with a prospective client about the possibility of entering into an ACR, the duty of confidentiality already applies, as does attorney client privilege. (MR 1.18) Meetings with prospective clients raise ethical risks such as confusion over whether an ACR exists, whether the lawyer already has a conflict adverse to the prospective client, and whether the lawyer will protect the prospective client’s confidences.

(Q 1.4) What is the legal test for the existence of an ACR?

The ethical codes and regulatory statutes say little about the legal test for the creation of the attorney client relationships. We are left to common law approaches. The law could be clearer regarding what, exactly, suffices to create the relationship. Some states use a contract analysis. Some use a tort analysis. Some examine the reasonable expectations of the putative client. Some states ask if the putative client reposed trust and confidence in the lawyer. Here is the test from §14 of the Restatement (Third) Law Governing Lawyers. Notice how it combines a contract test, a tort test, and the notion of judicial appointments.

FORMATION OF ATTORNEY-CLIENT RELATIONSHIP: A

relationship of client and lawyer arises when:

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(1) a person manifests to a lawyer the person’s intent that the lawyer provide legalservices for the person; and either:

(a) the lawyer manifests to the person consent to do so; or(b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies up the lawyer to provide the services; or

(2) a tribunal with power to do so appoints the lawyer to provide the services.

In some states and under some circumstances, the relationship is required to be memorialized in a written agreement. (See, e.g., Cal. Bus. & Prof. Code §§ 6146-49) But failure to obtain the agreement does not preclude someone from proving that you were his or her lawyer. For purposes of this semester, including the exam, assume that the sole legal test for the existence of an attorney-client relationship is the reasonable expectations of the putative client.

(Q 1.5) What is the effect of the creation of an ACR?

When the ACR is created, fiduciary duties run from the lawyer to the client (e.g., the fiduciary duties of communication, loyalty, competence, confidentiality, diligence, safeguarding the client’s property). The client may have contractual duties to the lawyer, if the lawyer properly contracted for those duties (e.g., fees, liens, etc.). Additionally, the creation of the ACR creates a framework for decision-making authority: the client determines the lawful objectives of the representation, while the attorney determines the means in consultation with the client.

Does that mean that in the discharge of her duties the lawyer owes duties only to the client—that the lawyer can completely disregard the legal rights of third parties? No. Although the lawyer’s fiduciary duties rarely extend beyond clients, the lawyer’s duties to the client are bounded by pre-existing duties such as the duty not to commit fraud on third parties, the duty not to provide false evidence to tribunals, and the duty not to commit crimes. That is, while fulfilling those fiduciary duties to the client, the lawyer also owes duties to the courts, legal system, adversaries, opposing counsel, witnesses, and others. Exactly where to place that boundary between client-duties and social-duties is a highly contested question.

(Q 1.6) What are the elements that define any particular ACR?

You haven’t defined the ACR until you’ve defined (1) who is the client; (2) who is not the client; (3) what is within the scope of the representation; and (4) what is outside the scope of the representation.

The second and fourth elements seem redundant, but experience has shown that they are critical to the proper definition of an ACR.

Lawyers may limit the scope of the representation if the criteria of MR 1.2 are met. There is currently a movement toward permitting unbundled or limited representations, especially in family courts. At the high end of the market, clients are disaggregating the legal work into functional tasks and are assigning each task to a particular service provider. (For example, in a large litigation, the client might have the document review done by non-lawyers in India, the e-discovery done by a specialty boutique, and the bulk of the litigation done by a highly-leveraged, expensive, “big law” firm.

(Q 1.7) Under what conditions must or may a lawyer terminate an ACR?

Lawyers often speak of mandatory withdrawals and permissive withdrawals. Lawyers must seek to terminate ACRs that are unlawful, seek forbidden objectives, or entail ethical breaches. (MR 1.16.) Lawyers may seek to terminate ACRs on a variety of other grounds, such as when there is a breakdown in the ACR relationship or when the client won’t pay the bill. (See MR 1.16.) If the lawyer has made an appearance before a tribunal, termination of the ACR requires the tribunal’s permission and may be denied if, for example, the lawyer seeks to withdraw on the eve of the trial.

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(Q 1.8) What is the legal test for the end of an ACR?

For purposes of this semester, assume that the reasonable expectations test governs.

(Q 1.9) What duties do lawyers owe after the termination of the ACR?

Post-ACR, lawyers still owe the duty of confidentiality, and they owe a limited, negative duty of loyalty tied to the subject matter of the terminated representation. That is, the lawyer cannot take on matters adverse to former clients if the matters are the same or substantially related as the matter the lawyer formerly handled for the former client. (MR 1.9) There may be additional limitations on a lawyer’s ability to attack the work product of his prior representation. Additionally, lawyers must return the client file, papers, property, and any unearned fees and also must assist in the transfer of the matter to new counsel.

1.1: Togstad v. Vesely, Otto, Miller & Keefe

Read this case and consider whether or not an attorney-client relationship was created. Do the client and attorney have different understandings of what was being said? If so, why? While the appellate court’s legal analysis is important, please try to see the fact pattern through the eyes of the client and then through the eyes of the lawyer.

Togstad, v. Vesely, Otto, Miller & Keefe291 N.W.2d 686

OPINIONBY: PER CURIAM

OPINION: This is an appeal by the defendants from a judgment of the Hennepin County District Court involving an action for legal malpractice. The jury found that the defendant attorney Jerre Miller was negligent and that, as a direct result of such negligence, plaintiff John Togstad sustained damages in the amount of $610,500 and his wife, plaintiff Joan Togstad, in the amount of $39,000. Defendants (Miller and his law firm) appeal to this court from the denial of their motion for judgment notwithstanding the verdict or, alternatively, for a new trial. We affirm.

In August 1971, John Togstad began to experience severe headaches and on August16, 1971, was admitted to Methodist Hospital where tests disclosed that the headaches were caused by a large aneurism on the left internal carotid artery. The attending physician, Dr. Paul Blake, a neurological surgeon, treated the problem by applying a Selverstone clamp to the left common carotid artery. The clamp was surgically implanted on August 27, 1971, in Togstad's neck to allow the gradual closure of the artery over a period of days.

The treatment was designed to eventually cut off the blood supply through the artery and thus relieve the pressure on the aneurism, allowing the aneurism to heal. It was anticipated that other arteries, as well as the brain's collateral or cross-arterial system would supply the required blood to the portion of the brain which would ordinarily have been provided by the left carotid artery. The greatest risk associated with this procedure is that the patient may become paralyzed if the brain does not receive an adequate flow of blood. In the event the supply of blood becomes so low as to endanger the health of the patient, the adjustable clamp can be opened to establish the proper blood circulation.

In the early morning hours of August 29, 1971, a nurse observed that Togstad was unable to speak or move. At the time, the clamp was one-half (50%) closed. Upon discovering Togstad's condition, the nurse called a resident physician, who did not adjust the clamp. Dr. Blake was also immediately informed of Togstad's

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condition and arrived about an hour later, at which time he opened the clamp. Togstad is now severely paralyzed in his right arm and leg, and is unable to speak.

About 14 months after her husband's hospitalization began, plaintiff Joan Togstad met with attorney Jerre Miller regarding her husband's condition. Neither she nor her husband was personally acquainted with Miller or his law firm prior to that time. John Togstad's former work supervisor, Ted Bucholz, made the appointment and accompanied Mrs. Togstad to Miller's office. Bucholz was present when Mrs. Togstad and Miller discussed the case.

Mrs. Togstad had become suspicious of the circumstances surrounding her husband's tragic condition due to the conduct and statements of the hospital nurses shortly after the paralysis occurred. One nurse told Mrs. Togstad that she had checked Mr. Togstad at 2 a.m. and he was fine; that when she returned at 3 a.m., by mistake, to give him someone else's medication, he was unable to move or speak; and that if she hadn't accidentally entered the room no one would have discovered his condition until morning. Mrs. Togstad also noticed that the other nurses were upset and crying, and that Mr. Togstad's condition was a topic of conversation.

Mrs. Togstad testified that she told Miller "everything that happened at the hospital," including the nurses' statements and conduct which had raised a question in her mind. She stated that she "believed" she had told Miller "about the procedure and what was undertaken, what was done, and what happened." She brought no records with her. Miller took notes and asked questions during the meeting, which lasted 45 minutes to an hour. At its conclusion, according to Mrs. Togstad, Miller said that "he did not think we had a legal case, however, he was going to discuss this with his partner." She understood that if Miller changed his mind after talking to his partner, he would call her. Mrs. Togstad "gave it" a few days and, since she did not hear from Miller, decided "that they had come to the conclusion that there wasn't a case." No fee arrangements were discussed, no medical authorizations were requested, nor was Mrs. Togstad billed for the interview.

Mrs. Togstad denied that Miller had told her his firm did not have expertise in the medical malpractice field, urged her to see another attorney, or related to her that the statute of limitations for medical malpractice actions was two years. She did not consult another attorney until one year after she talked to Miller. Mrs. Togstad indicated that she did not confer with another attorney earlier because of her reliance on Miller's "legal advice" that they "did not have a case."

On cross-examination, Mrs. Togstad was asked whether she went to Miller's office "to see if he would take the case of [her] husband * * *." She replied, "Well, I guess itwas to go for legal advice, what to do, where shall we go from here? That is what we went for." Again in response to defense counsel's questions, Mrs. Togstad testified as follows:

Q: And it was clear to you, was it not, that what was taking place was a preliminary discussion between a prospective client and lawyer as to whether or not they wanted to enter into an attorney-client relationship?A: I am not sure how to answer that. It was for legal advice as to what to do.Q: And Mr. Miller was discussing with you your problem and indicating whether he, as a lawyer, wished to take the case, isn't that true?A: Yes.

On re-direct examination, Mrs. Togstad acknowledged that when she left Miller's office she understood that she had been given a "qualified, quality legal opinion that [she and her husband] did not have a malpractice case."

Miller's testimony was different in some respects from that of Mrs. Togstad. Like Mrs. Togstad, Miller testified that Mr. Bucholz arranged and was present at the meeting, which lasted about 45 minutes. According to Miller, Mrs. Togstad described the hospital incident, including the conduct of the nurses. He asked her questions, to which she responded. Miller testified that "the only thing I told her [Mrs. Togstad] after we had

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pretty much finished the conversation was that there was nothing related in her factual circumstances that told me that she had a case that our firm would be interested in undertaking."

Miller also claimed he related to Mrs. Togstad "that because of the grievous nature of the injuries sustained by her husband, that this was only my opinion and she was encouraged to ask another attorney if she wished for another opinion" and "she ought to do so promptly." He testified that he informed Mrs. Togstad that his firm "was not engaged as experts" in the area of medical malpractice, and that they associated with the Charles Hvass firm in cases of that nature. Miller stated that at the end of the conference he told Mrs. Togstad that he would consult with Charles Hvass and if Hvass's opinion differed from his, Miller would so inform her. Miller recollected that he called Hvass a "couple days" later and discussed the case with him. It was Miller's impression that Hvass thought there was no liability for malpractice in the case. Consequently, Miller did not communicate with Mrs. Togstad further.

On cross-examination, Miller testified as follows:

Q: Now, so there is no misunderstanding, and I am reading from your deposition, you understood that she was consulting with you as a lawyer, isn't that correct?A: That's correct.Q: That she was seeking legal advice from a professional attorney licensed to practice in this state and in this community?A: I think you and I did have another interpretation or use of the term "Advice". She was there to see whether or not she had a case and whether the firm would accept it.Q: We have two aspects; number one, your legal opinion concerning liability of a case for malpractice; number two, whether there was or wasn't liability, whether you would accept it, your firm, twoseparate elements, right? A: I would say so.Q: Were you asked on page 6 in the deposition, folio 14, "And you understood that she was seeking legal advice at the time that she was in your office, that is correct also, isn't it?" And did you give this answer, "I don't want to engage in semantics with you, but my impression was that she and Mr. Bucholz were asking my opinion after having related the incident that I referred to." The next question, "Your legal opinion?" Your answer, "Yes." Were those questions asked and were they given?MR. COLLINS: Objection to this, Your Honor. It is not impeachment.THE COURT: Overruled.THE WITNESS: Yes, I gave those answers. Certainly, she was seeking my opinion as an attorney in the sense of whether or not there was a case that the firm would be interested in undertaking.

Kenneth Green, a Minneapolis attorney, was called as an expert by plaintiffs. He stated that in rendering legal advice regarding a claim of medical malpractice, the minimum an attorney should do would be to request medical authorizations from the client, review the hospital records, and consult with an expert in the field. John McNulty, a Minneapolis attorney, and Charles Hvass testified as experts on behalf of the defendants. McNulty stated that when an attorney is consulted as to whether he will take a case, the lawyer's only responsibility in refusing it is to so inform the party. He testified, however, that when a lawyer is asked his legal opinion on the merits of a medical malpractice claim, community standards require that the attorney check hospital records and consult with an expert before rendering his opinion.

Hvass stated that he had no recollection of Miller's calling him in October 1972 relative to the Togstad matter. He testified that:

A * * * when a person comes in to me about a medical malpractice action, based upon what the individual has told me, I have to make a decision as to whether or not there probably is or probably is not, based upon that information, medical malpractice. And if, in my judgment, based upon what the client has told me, there is not medical malpractice, I will so inform the client.

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Hvass stated, however, that he would never render a "categorical" opinion. In addition, Hvass acknowledged that if he were consulted for a "legal opinion" regarding medical malpractice and 14 months had expired since the incident in question, "ordinary care and diligence" would require him to inform the party of the two-year statute of limitations applicable to that type of action.

This case was submitted to the jury by way of a special verdict form. The jury found that Dr. Blake and the hospital were negligent and that Dr. Blake's negligence (but not the hospital's) was a direct cause of the injuries sustained by John Togstad; that there was an attorney-client contractual relationship between Mrs. Togstad and Miller; that Miller was negligent in rendering advice regarding the possible claims of Mr. and Mrs. Togstad; that, but for Miller's negligence, plaintiffs would have been successful in the prosecution of a legal action against Dr. Blake; and that neither Mr. nor Mrs. Togstad was negligent in pursuing their claims against Dr. Blake. The jury awarded damages to Mr. Togstad of $610,500 and to Mrs. Togstad of $39,000.

On appeal, defendants raise the following issues:

(1) Did the trial court err in denying defendants' motion for judgment notwithstanding the jury verdict?

(2) Does the evidence reasonably support the jury's award of damages to Mrs. Togstad in the amount of $39,000?

(3) Should plaintiffs' damages be reduced by the amount of attorney fees they would have paid had Miller successfully prosecuted the action against Dr. Blake?

(4) Were certain comments of plaintiffs' counsel to the jury improper and, if so, were defendants entitled to a new trial?

In a legal malpractice action of the type involved here, four elements must be shown: (1) that an attorney-client relationship existed; (2) that defendant acted negligently or in breach of contract; (3) that such acts were the proximate cause of the plaintiffs' damages; (4) that but for defendant's conduct the plaintiffs would have been successful in the prosecution of their medical malpractice claim. See, Christy v. Saliterman, 288 Minn. 144, 179 N.W.2d 288 (1970).

This court first dealt with the element of lawyer-client relationship in the decision of Ryan v. Long, 35 Minn. 394, 29 N.W. 51 (1886). The Ryan case involved a claim of legal malpractice and on appeal it was argued that no attorney-client relation existed. This court, without stating whether its conclusion was based on contract principles or a tort theory, disagreed:

It sufficiently appears that plaintiff, for himself, called upon defendant, as an attorney at law, for "legal advice," and that defendant assumed to give him a professional opinion in reference to the matter as to which plaintiff consulted him. Upon this state of facts the defendant must be taken to have acted as plaintiff's legal adviser, at plaintiff's request, and so as to establish between them the relation of attorney and client.

Id. (citation omitted). More recent opinions of this court, although not involving a detailed discussion, have analyzed the attorney-client consideration in contractual terms. See, Ronnigen v. Hertogs, 294 Minn. 7, 199 N.W.2d 420 (1972); Christy v. Saliterman, supra. For example, the Ronnigen court, in affirming a directed verdict for the defendant attorney, reasoned that "under the fundamental rules applicable to contracts of employment * * * the evidence would not sustain a finding that defendant either expressly or impliedly promised or agreed to represent plaintiff * * *." 294

Minn. at 11, 199 N.W.2d at 422. The trial court here, in apparent reliance upon the contract approach utilized in Ronnigen and Christy, supra, applied a contract analysis in ruling on the attorney-client relationship

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question. This has prompted a discussion by the Minnesota Law Review, wherein it is suggested that the more appropriate mode of analysis, at least in this case, would be to apply principles of negligence, i.e., whether defendant owed plaintiffs a duty to act with due care. 63 Minn. L. Rev. 751 (1979).

We believe it is unnecessary to decide whether a tort or contract theory is preferable for resolving the attorney-client relationship question raised by this appeal. The tort and contract analyses are very similar in a case such as the instant one, and we conclude that under either theory the evidence shows that a lawyer-client relationship is present here. The thrust of Mrs. Togstad's testimony is that she went to Miller for legal advice, was told there wasn't a case, and relied upon this advice in failing to pursue the claim for medical malpractice. In addition, according to Mrs. Togstad, Miller did not qualify his legal opinion by urging her to seek advice from another attorney, nor did Miller inform her that he lacked expertise in the medical malpractice area. Assuming this testimony is true, as this court must do, see, Cofran v. Swanman,

225 Minn. 40, 29 N.W.2d 448 (1947), we believe a jury could properly find that Mrs. Togstad sought and received legal advice from Miller under circumstances which made it reasonably foreseeable to Miller that Mrs. Togstad would be injured if the advice were negligently given. Thus, under either a tort or contract analysis, there is sufficient evidence in the record to support the existence of an attorney-client relationship.

Affirmed.

1.2. Example: Reject Letters to Prospective Client

Following are two letters a plaintiffs legal malpractice attorney sends when he decides not to take on a matter for a prospective client. Analyze and evaluate the letters sentence-by-sentence and paragraph-by-paragraph.

CERTIFIED MAIL - RETURN RECEIPT REQUESTED

NameAddress

Re: Possible Legal Malpractice Claim

Dear :

Based upon your telephone conference of [enter date] with my Legal Assistant [or reference correspondence if letter sent], and upon careful consideration of your claim, this is to advise you that I cannot proceed with your malpractice claim.

While this decision is final on my part, it may well be that another attorney can represent you. My decision is not and should not be construed by you to be an opinion as to the merits of your case. I advise you to contact other legal counsel at once.

You have only one year from the date you learned of or should have learned of an alleged act of legal malpractice within which to commence an action against the parties responsible for the loss. There are also additional complex requirements which must be met in a timely fashion. Failure to meet these requirements will forever bar you from your claim against the responsible parties.

There are certain circumstances which may extend the Statute of Limitations, or possibly restrict the time in which you must file a claim. I do not have sufficient information to render an opinion as to whether any of these circumstances apply in your case.

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You may wish to recontact [referring attorney/source], the attorney/person who referred you to my office, or utilize the Lawyer Referral Service of the Santa Clara County (or county where they reside) Bar Association to obtain a reference

Thank you for your trust and confidence. I regret that I cannot be of service to

Very truly yours,

cc: Referring Attorney/Source

* * * * *

Date

Attorney NameFirm Address City

Re: CLAIMS OF (name of person contacting your office) FOR LEGAL MALPRACTICE

Dear Attorney/Source:

Thank you for referring [person seeking attorney services] to my office. At this time it is not feasible for me to proceed further with his/her case.

I have enclosed a copy of the letter I have sent to him/her for your review.

I deeply appreciate the trust and confidence you have placed in me by referring [person seeking attorney services]. If there is any way I can be of service to you or your firm in the future, please do not hesitate to call.

Very truly yours,

/Signature/

Enclosure

Hard Drive: Desktop Folder: Claim Letter

1.3. Example: Am I your lawyer if you don’t want me?

THE DEFENSE WILL NOT REST.

Two U.S. military officers are jeopardizing their careers to protect the legal rights of those held at Guantánamo Bay. The way they see it, justice should be blind—for everyone.

By Sean Flynn

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William Kuebler, a navy lieutenant with clippered hair and a round face, sat in his crisp summer whites at a heavy wooden table in the courtroom at Guantánamo Bay. To his left, at the other end of the table, was a young Saudi named Ghassan Abdullah al Sharbi, who was reputed to be one of the most dangerous terrorists on the planet. Al Sharbi was about to be tried for war crimes, and Kuebler was supposed to defend him.

The problem was, al Sharbi did not want to be defended. Kuebler knew that, of course: Al Sharbi had refused to even meet with him for the past five months, finally acquiescing only four days earlier and then only long enough to tell Kuebler to go away. And really, who could blame him?

By April 2006, al Sharbi had already been locked up for almost four years at Guantánamo, where the military had declared him an “enemy combatant.” President Bush had claimed the authority to continue holding him—along with hundreds of men already in custody, as well as any other foreign national he might decide was an enemy combatant—until the end of the war on terror, a sentence that worked out to somewhere between indefinite and forever. His cell was eight feet long and not quite seven feet wide, with a bunk and a sink and, on the floor, a hole for a toilet and a painted arrow pointing toward Mecca. The lights were kept on around the clock, and he was allowed out only in shackles to shower and exercise for a half hour a few days a week. Al Sharbi had also almost certainly been subjected to “enhanced interrogation techniques,” some of which until recently were considered torture and, according to the State Department, still are when practiced by Iran, Libya, Turkey, or any of a dozen other countries.

The only thing that made al Sharbi exceptional was that he was one of only a few Guantánamo detainees who’d actually been charged with a crime, albeit a novel one in the annals of international-warfare law: conspiracy to commit, among other things, murder by an unprivileged belligerent—which basically means he thought about killing American soldiers he believed he was at war with. (He was never accused of killing, or even trying to kill, anyone.) He would be prosecuted by the men at the table on the other side of the room, an Air Force captain and a Navy Reserve lieutenant, who would be allowed to present their case using evidence the military considered so sensitive that al Sharbi would not be allowed to see it, let alone contest it. The judge, who was known in the proceedings as the presiding officer, was a navy captain. The jurors would also be military officers.

All things considered, al Sharbi preferred not to be defended by an American military officer. He wanted to speak for himself.

Bill Kuebler did not find that to be an unreasonable position.

Nor was it a tenuous one, legally speaking: The right to self-representation had been a codified tenet of American law for 217 years. Under established rules, whether a man can competently defend himself is irrelevant; he need only be competent to make the decision to represent himself. Kuebler believed al Sharbi was. Therefore, Kuebler believed he had an ethical obligation to step aside. A lawyer can’t force himself upon an unwilling client, and no credible court would ever allow such a thing. To do so would be to replace a vigorous defender with a prop, an actor in a charade that only mimicked a proper trial.

Kuebler sat quietly at the defense table while the presiding officer asked al Sharbi if he wanted the lieutenant to be his lawyer.

No.

Did he want a different military lawyer?

No. “To me,” al Sharbi said, “it’s the same circus, different clown.”

Did he want an American civilian lawyer?

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No.

The presiding officer asked about al Sharbi’s education (a bachelor’s degree from Embry-Riddle Aeronautical University in Arizona), about his experience as a lawyer (none), whether he’d read and understood the various orders and rules governing the military commissions (not yet), and whether he would abide by those rules.

“I’m not going to be violent or cause troubles or cause commotions,” al Sharbi said. “That’s what I’m telling you.”

The presiding officer explained, in great detail, why he thought it would be unwise for al Sharbi to proceed without an attorney. If convicted of the single conspiracy charge against him, he would face what the presiding officer called “prolonged confinement,” which was another way of saying life in prison. Al Sharbi, in turn, argued that the commission was illegitimate and that accepting a military lawyer would make him complicit in that illegitimacy. As it would Kuebler, too. “I would have maximum respect for him if he stayed out of the whole process,” al Sharbi said. “Just as a person to a person.”

The presiding officer called a short recess to decide whether he would permit al Sharbi to represent himself. Fifteen minutes later, he announced his findings.

“I find that you are a fluent English speaker.…”

Kuebler brightened. A good start.

“I also find that you are well educated.…”

Oh, my God, Kuebler thought, is he actually going to let al Sharbi represent himself?

“However, I also find that you are not familiar with the Commission Law and rules.…”

How could he be familiar with rules he just said he hadn’t read yet?

“I also find that you are not qualified to have access to classified information and that you would not be permitted to be present during closed sessions of these proceedings.” In other words, al Sharbi could be excluded from parts of his own trial. “Therefore,” the presiding officer continued, “I find that if you do have a right to represent yourself, that you are not qualified to do so.”

And finally: “I also find that MCO 1”—the first military-commissions order—“explicitly requires that you be represented at all times by detailed defense counsel.” He glanced at Kuebler. “So with that, Lieutenant, you are directed to fulfill your responsibility as detailed defense counsel in this matter.”

Kuebler was pissed. Yes, he knew the rules; but he’d also hoped those rules might bend under the weight of such a fundamental right, especially when argued by a clearly competent defendant. Why else would the presiding officer have gone through the motions—so convincingly that Kuebler believed, if only for a moment, that al Sharbi had actually won?

Because it was all part of the show. They were never going to let al Sharbi represent himself, Kuebler realized, because the rules say he can’t represent himself. All the questions and answers, the talk about risks and consequences and who should represent whom—mere stagecraft, a recitation of a predetermined script. A show.

And he was being forced to play a role, that of the zealous defender in his crisp summer whites.

*****

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“It took me a while to figure out the system is rigged,” Bill Kuebler was saying one day last spring, more than a year after he’d been ordered to defend a man against his will. “When it hit me how ridiculous and unjust and farcical this is? That was it. That was the moment I realized it was all a sham.”

Kuebler is not a radical or a gadfly or even a liberal. He is, rather, a conservative Republican and devout Christian, a husband and father, who left a lucrative career as a civil litigator to join the navy and serve his country at the relatively late age of 28. When he’s not in uniform he favors buttoned-up polo shirts and khakis, which make him look like an office manager or perhaps an insurance adjuster. And when he speaks—when he accuses his government of rigging military tribunals to the point of farce, of mocking the basic rule of law he swore to uphold—he does so with all the passion of an office manager discussing, say, the supply of ink cartridges and paper clips: drily and succinctly, as if he is making statements of fact no more or less obvious than the color of the sky.

When President Bush announced, in November 2001, that a new class of foreign fighters—what the administration would call enemy combatants—would be subjected to trial by military commissions, Bill Kuebler did not find the idea objectionable. Quite the opposite: He believed the attacks of September 11—an act of war committed by men who were not soldiers of a recognized army yet who clearly were more organized and dangerous than common criminals—marked a “paradigm shift,” an event so traumatic that it required modifying the rules of detention and perhaps even those of warfare itself. “Without giving it any thought, I generally accepted the concept of enemy combatants,” he says. If America truly faced a new kind of enemy, then America would need new policies to deal with those enemies.

Kuebler assumed those policies would resemble established military law, that the commissions would be a form of court-martial conducted on or near the battlefield. “If you’d asked me in November 2001,” he says, “I would have thought there’d be a bunch of JAGs in fatigues in Afghanistan going through four, five, 800 files of enemy combatants, and they’d deal with them.”

Instead, the Bush administration, in January 2002, opened the prison camp at Guantánamo Bay and eventually stocked it with more than 700 men and boys whom former Secretary of Defense Donald Rumsfeld described as “among the most dangerous, best-trained vicious killers on the face of the earth” and whom President Bush called “the worst of the worst.” And yet after almost four years, not a single one had been tried for any crime by a military commission; only ten had even been charged with anything, and none of those could be considered terrorist masterminds. (“They’re really nobodies,” Kuebler says. “I guess I suspected there’d be a little more punch.”) The rest were designated as enemy combatants who could be locked away until the war on terror was finally declared over.

And still, even by late 2005, Kuebler had no howling objection. If anything, he was intrigued by the commissions, which were loosely based— very loosely, and mostly in name only—on a military trial system that had last been used more than sixty years before, during World War II. “It was fascinating, cutting-edge law,” he says. “And to be involved in this new system, this new paradigm for dealing with terrorism, was historical.”

He asked to be transferred from his role as legal adviser at the naval base in Groton, Connecticut, to defend detainees before the commissions. He wasn’t choosing sides—that is, he wasn’t aligning himself with alleged terrorists he suspected had been wrongly accused—but rather volunteering for a necessary and honorable role. If the commissions were going to be fair, the accused would require a proper defense. That is a concept so basic that it’s beyond debate. Even the Nazis had lawyers at Nuremberg. “I didn’t come to this anti-Bush or anti-war on terror or anti anything,” Kuebler says. “I approached it with the idea of affording the system a presumption of legitimacy.”

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Kuebler’s request was granted, and in November 2005 he flew to Guantánamo to meet his assigned client—only to be told that al Sharbi did not want to see him.

*****

As it happened, Kuebler flew to Guantánamo on the same plane as another military defense lawyer whose client also did not want to see him. Tom Fleener is a major in the Army Reserve, 40 years old and still army trim, with brush-cut black hair and thick eyebrows that hop and twitch with the inflections in his voice. He’s an Iowa boy who joined the infantry out of Ames High School, went to college and law school, and then spent eight years as a JAG before mustering out in 2003.

Unlike Kuebler, Fleener was fully aware before he got on the plane that Ali Hamza Ahmad Sulayman al Bahlul did not want an American military officer defending him before a military tribunal. In fact, al Bahlul had demanded to represent himself more than a year before, in the summer of 2004, when he was initially charged with a war crime. His request was denied for the same reason al Sharbi’s eventually would be: It was against the rules.

At the time, Fleener was an assistant federal public defender in Wyoming, a job he liked in a place he liked. He paid only casual attention to Guantánamo, following the news accounts with not much more than a professional curiosity. But then some buddies in the JAG Corps briefed him on the commissions and, more important, on al Bahlul. By mid-2005, Fleener was studying more intently, poring through Department of Defense memorandums and presidential orders and the commission regulations. He was shocked by what he found: The rules really did require defendants to accept a pro bono military lawyer.

“The concept of compelled representation has always bothered the crap out of me,” Fleener says. “You just don’t force lawyers on people. You don’t represent someone against his will. It’s never, ever, ever done.”

The reason it’s never done is that it undermines the concept of a fair trial. When a man’s life or liberty is at stake, he gets to decide who will speak for him. That’s the way American courts work, have always worked. To eliminate that right is to begin to transform a trial into a pageant. And the other commission regulations—the use of secret evidence and third-hand hearsay, excluding defendants from parts of their own trials, charging them with invented crimes after they’d been interrogated in isolation for years—only further that transformation.

“I hated the fact, still hate the fact, that we were making up a trial system to convict people after we’d already decided they’re guilty,” Fleener says. “I hated that as a country, we were doing that. I didn’t like the fact that we were violating the rule of law, and that what we were doing as a country was just…wrong.”

Fleener hated it enough to return to active duty—specifically, to represent al Bahlul. Or more accurately, to be the lawyer al Bahlul would try to fire, the proxy through which an alleged terrorist could attempt to preserve the right to choose his own counsel. (“That’s the irony,” Fleener says. “I took a job knowing I’d be trying not to work.”)

So he flew to Guantánamo, where al Bahlul refused to meet him and al Sharbi refused to meet Kuebler, and then the two lawyers spent a few days in the sun, talking about the law and the commissions and their peculiar problem. They became friends and, during the following weeks and months, legal partners, two officers trying to figure out how to not represent men they’d volunteered to defend because that—getting fired—was the right and proper thing to do.

Fleener was still officially al Bahlul’s lawyer when he finally met him on January 11, 2006. Al Bahlul is a Yemeni national with a long beard and a slight build who is reputed to have been a bodyguard and propagandist for Osama bin Laden, and he had a hearing that morning on a charge of conspiracy identical to al Sharbi’s. He spoke with Fleener briefly beforehand, just long enough to tell him he didn’t want his assistance and to explain why. Then he went into the courtroom and sat at the defense table.

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Fleener sat behind him and to his right, in a chair just inside the bar rail. The distance was deliberate. If they actually want to force a lawyer on a guy, he told himself, they’re going to have to make it look like they’re forcing a lawyer on a guy.

Al Bahlul spoke through a translator to the presiding officer, explaining for the second time in seventeen months that he wanted to represent himself. How could he possibly trust a U.S. military officer to defend him? He’d been imprisoned by the military for four years already, and he claimed to have been mistreated—tortured, depending on who’s defining the term—during interrogations. Why, for that matter, would he want any American speaking for him? “I regard them as enemies,” he told the presiding officer.

His request was denied, and then the presiding officer, army colonel Peter E. Brownback III, motioned toward Fleener. “Major Fleener,” he said, “please move up to the counsel table.”

Fleener stood. “Sir, is this an order?” he asked. “Should I consider it an order?”

“Do you need an order?”

“I believe I do, sir,” he said.

*****

From one perspective, allowing these two particular alleged terrorists to represent themselves would eliminate a lot of headaches for the government: Neither would be difficult to convict because neither would present an actual defense. Al Sharbi, if allowed, would become a martyr. “To be honest with you, I did not come here to defend myself,” he announced at his last hearing. “I came here to tell you that I did what I did and I’m willing to pay the price no matter how much you sentence me, even if I spend hundreds of years in jail. In fact, it’s going to be an honor, a medal of honor to me.” Al Bahlul would be even less ambitious: He promised to boycott his trial—a point he made by holding up a sheet of paper with boycott scripted in Arabic—and let Allah sort it all out later. “You are going to be ruling in this life, this earth,” he told Brownback, “and God will rule based on justice.”

Yet who speaks for the defendants matters greatly to the government, because the commission trials are meant, in part, to justify Guantánamo itself.

Which is extremely difficult at this point. The prison camp at Guantánamo has been an international scandal since it opened in early 2002. Hundreds of men, most captured far from any physical battlefield, have been held without charges, without access to courts, and most radically, without the protections of the Geneva Conventions, one of the governing laws of war by which every civilized nation for more than fifty years has agreed to abide. They have also been subjected to interrogation techniques—sleep and sensory deprivation, extreme heat and cold, sexual humiliation, prolonged confinement in painful positions, threats of physical harm—that, if not outright torture, would be criminal if attempted on American soil.

This is why enemy combatants are held at Guantánamo. The base is a legal no-man’s-land, a spit of sand leased from Cuba that is under U.S. control but is not sovereign territory. As such, the Bush administration maintains that neither the Constitution nor the writ of habeas corpus—the centuries-old foundation of Western law that allows a person to contest his detention before a legitimate court—applies to foreign nationals imprisoned there. Guantánamo, then, has—from its inception—been intended not primarily as a place to hold illegal fighters off the battlefield (any old prison could accomplish that) but as a place where men without rights could be interrogated without judicial oversight. “Everything about it, from where it was placed to its day-to-day operations to the rules that were put in place, reveal that its principal purpose was to be the ideal interrogation chamber,” says Joseph Margulies, an attorney with the MacArthur Justice Center at Northwestern University School of Law who has represented detainees and who wrote Guantánamo and the Abuse of Presidential Power. “And what they believed is

14

that in order to extract information, you needed to create an environment of anxiety, of fear, of disorientation, of dread. That’s not the environment that typically prevailed in prior armed conflicts.”

Five years in, there is also ample evidence that many of the Guantánamo detainees are not, in truth, “the worst of the worst.” While there are surely some dangerous men there—including Khalid Sheikh Mohammed, the reputed architect of September 11, who was transferred there last September from a secret prison overseas—Guantánamo has also hosted a sizable contingent of Taliban conscripts, low-level jihadis, and a collection of peasants, farmers, students, and businessmen swept up by mistake. Only 8 percent were considered Al Qaeda fighters, and 55 percent hadn’t done anything hostile to the United States or its allies, according to a 2006 analysis of detainee files by researchers at Seton Hall University School of Law. Only 5 percent were captured by U.S. forces, whereas 86 percent were either captured by Pakistanis (including al Sharbi) or grabbed by the Northern Alliance when the United States was papering Afghanistan with bounty notices. “Get wealth and power beyond your dreams,” one promised. “You can receive millions of dollars for helping the Anti-Taliban Force catch Al-Qaida and Taliban murderers.” With an incentive like that, it is not inconceivable that the people rounded up would be the easiest prey instead of the most vicious, especially when a confederation of warlords is doing the hunting. The relative danger of a detainee could also be mitigated by his citizenship: Every enemy combatant with a British passport, for example, has been released at the request of the United Kingdom, which preferred even its alleged terrorists not be detained and interrogated indefinitely without charge.

Still, if the administration is going to maintain that the men it has held for years truly are among “the most vicious killers on the face of the earth,” it seems only right that the United States should prove as much. International decorum, to say nothing of the nation’s presumed moral stature, demands at least a token few be tried before a fair tribunal.

That’s where the commissions come in. It’s extremely unlikely that anyone held at Guantánamo could be convicted in federal court (to which the administration says they have no access anyway) or in something closer to a regular court-martial “because of the way we’ve collected evidence and other things,” says Brigadier General Thomas Hemingway, the former legal adviser to the commissions. Even generously assuming no evidence has been obtained through abusive interrogations (which would almost certainly be barred from any criminal court), each defendant has been questioned for years without the benefit of counsel, which in itself would be considered impermissible. And perhaps certain evidence—statements from a Taliban mole, say, or a few bits of data from a laptop an Al Qaeda cell doesn’t know is missing—would compromise national security if it were revealed in an open hearing.

But let’s be realistic. The interrogations, whether abusive or merely aggressive, are the primary problem. And the government anticipated as much: The commission system was established before Guantánamo opened, in preparation for what would happen there.

Which is why the commissions were designed to appear to be fair. The rules required each defendant to be provided a JAG officer who would be bound by personal and professional honor to present as robust a defense as possible. It would all look very proper, but the outcome would be preordained, the defendant utterly doomed, because of all the other rules.

The main problem with the commission system is that it would try men already considered guilty: Every defendant would have been ruled an enemy combatant, first by the mere fact of his detention, then by a separate board, a Combatant Status Review Tribunal—and he would be charged with a crime only an enemy combatant could commit. (“Conspiracy to commit murder by an unprivileged belligerent” is just a clunkier way of calling a man an unlawful enemy combatant.) The charge would only reinforce what had already been decided; the presumption of innocence would be completely reversed.

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The trial procedures were no better. Defendants wouldn’t see classified evidence against them, including anything that fell under the broad rubric of “sources and methods”—or, more simply, how statements were gathered and from whom. That obviously could include the benign, such as protecting the identity of an informant, yet it also clearly suggested that evidence derived from torture could be allowed while the actual torturing would be kept secret. If, for example, John Doe had been waterboarded until he claimed that Mike Smith was a terrorist, Mike Smith would know only that “a source” had positively identified him, though not who or under what conditions. The accused also could be removed from his own trial whenever the presiding officer decided national security needed to be protected, and the rules tolerating hearsay testimony were so loose as to be meaningless. Any fifth-hand mumblings could be used against a man, and he would have no effective ability to challenge them.

“In practice the commissions dispense with two indispensable legal protections—the presumption of innocence and the prevention of ex post facto application of criminal laws,” Fleener says. “What we’re saying is, ‘You are guilty of something—we just don’t know exactly what. So we’ll gather as much incriminating evidence as we can, using methods that we aren’t going to talk about, and then we’ll make up a law that criminalizes the conduct.’ ”

For some of the detainees charged in 2006, having a military lawyer was an acceptable arrangement, certainly no worse than their present circumstances of sitting isolated in a cell.

But what if an alleged terrorist didn’t want to play along? What if he didn’t care about making the show as convincing as possible?

Then the show would collapse. It would be exposed for what it is: neither fair nor credible. Which is why al Bahlul and al Sharbi had JAG officers forced upon them.

“Over time,” Kuebler says, “we figured out we’re the linchpin in this process. They want to have these bizarre trials, they don’t want to let the defendant see secret evidence—so the one thing they need is us. The government wanted this attorney-client thing to work. They really did. It’s an important part of the show.”

“Only the government benefits if we do a bang-up job,” Fleener says. “The administration believes the commission process will ultimately justify the detentions. They know they can’t just hold people; they don’t want to take the political heat. So they rigged the rule of law. And because it’s rigged, the only thing that’s in play is the appearance.” And the detainees know it, which is why they don’t want to go along with a charade. “At the end of the day,” he says, “that’s how these guys look at it: ‘If I’m going to get a life sentence—or a death sentence—I’d rather get one in this weird, disgusting system that everyone knows is a weird, disgusting system than have some military lawyer up there dancing and juicing it up and making it look like it’s not rigged.’ ”

*****

Ironically, Kuebler and Fleener want to defend their ostensible clients. They both have this notion that al Sharbi and al Bahlul will come around, that each will eventually realize that an American military officer who’ll fight for his right to reject him will also defend him at trial, even an unfair trial. And they both believe al Sharbi and al Bahlul would be better off with their help, too. Probably still doomed, but not quite as definitively.

But why should either man cooperate? After years in military custody, there’s no reason to trust a man in uniform, particularly one with so little power he can be turned away by the guards at the gate. “What’s this guy supposed to think?” Kuebler says. “ ‘Here’s your lawyer, but we control him’?” Even if al Sharbi did accept his lawyer, nothing would change, not in any future near enough for him to glimpse. He would still be stuck in Guantánamo. He would probably be seen as a collaborator, an informant squealing to a man in a uniform. And his objective isn’t to win his freedom—his motives are political. He wants to demonstrate that America isn’t moral and isn’t just and is perfectly content to stage mock trials to convict him under laws he doesn’t recognize. Why should he help? Would an American soldier captured by the Taliban and charged with crimes against Allah willingly cooperate with the best

16

Sharia lawyer in all of Afghanistan? No. How is al Sharbi’s situation, from his perspective, objectively different? It’s not.

“It would all be different if you had a guy saying, ‘Please help me,’ ” Fleener says. “And that’s really what it comes down to. If a guy wants my help navigating through a rigged trial system, I should help him.”

But he can’t. Al Bahlul hasn’t said help me. He has said I regard you as my enemy.

So in the spring of 2006, Fleener and Kuebler were stuck arguing for the right of two defendants to fire them—which is to say, for the rule of law. (An often unpopular cause. Even Fleener’s own mother wasn’t happy in the beginning. “I tried to explain it to her, and my mom’s comeback was always something regarding 9/11,” he says.) What happens to those two admitted jihadists is, frankly, less important than what happens to the American ideal. “It truly does affect all of us,” Fleener says. “It’s not because al Bahlul wants to dispense with counsel that I’d leave my job and get involved in this mess. It’s that once you start putting on show trials, you can’t go back.”

And he couldn’t just quit, either. “What I didn’t want was for them to give this to some junior officer who would let Colonel Brownback scare him into playing along and not do the right thing here, and I think the right thing was to make sure this guy’s voice was heard,” he says.

He sighs. “For the first time in my life, I felt like I couldn’t do the moral thing”—defend al Bahlul’s rights— “or just walk away.”

*****

Here is the problem with an attorney representing a client who doesn’t want his services: It’s unethical. There are exceptions, of course, such as when a defendant is incompetent or disruptive. But as a general rule, a lawyer can’t impose himself on a man who’d prefer otherwise, and he will be punished if he does. The defendant can sue for malpractice, and the bar can impose sanctions, even take away his license to practice.

An order to represent al Sharbi and al Bahlul, then, would also be an order for Fleener and Kuebler to violate their professional ethics; by obeying their superiors, they risked disobeying the rules of the bar. Even if a foreign detainee’s right to choose counsel was irrelevant, what about the right of Fleener and Kuebler to avoid committing professional misconduct? They were U.S. citizens exposed to potentially serious harm by the commissions. Al Sharbi and al Bahlul couldn’t argue anything in federal court, “but there’s no way they could keep the lawyers out of court,” Fleener says. And looking at it from that angle highlighted the deeper conflict. “Are we soldiers who have to try to get through this process because we follow orders and that’s what we do?” he says. “Or are we lawyers who are supposed to try to make sure the rule of law isn’t destroyed in the process?”

But would they face real harm? Or would the strange and muddy rules of the military commission inoculate them against what would otherwise be obvious ethical violations? That was not clear. The Professional Responsibility Committee of the navy JAG office, not surprisingly, said that Kuebler “is required to zealously represent Mr. Al Sharbi at all proceedings before a military commission,” because that’s what the commission rules required. The army JAG office said that Fleener “may be directed to continue representation” of al Bahlul “even though he can, and perhaps should, move to withdraw…if the client is completely uncooperative” —which, of course, al Bahlul was and Fleener did and the presiding officer denied. And the state bar in Iowa, where Fleener is licensed, came up with the curious notion that his duty as an officer of the court trumped his ethical obligations involving an unwilling client.

To other ethics specialists, however, the answer was obvious. “There are some exceptions way out at the margins,” says John Steele, a law-school lecturer and practicing lawyer in California, where Kuebler is licensed. “But the basic rule is, for a competent individual, you can’t do it.” In an April 2006 affidavit, Steele noted that even employing “an

17

‘attack the government’s burden of proof’ defense for Mr. al Sharbi” —a bare-bones maneuver that wouldn’t require al Sharbi’s cooperation at all— “would breach fundamental tenets of legal ethics.” Fourteen lawyers and legal scholars in Wyoming, where Fleener is also licensed, agreed in a separate memorandum. And if he were forced to represent al Bahlul, Wyoming rules would require him to follow “the client’s decisions concerning the objectives of representation.” And since al Bahlul’s objective is to not be represented by Fleener…well, it’s a conundrum.

Those state issues aren’t tangential. All JAGs must be licensed in one state or another (there is no military bar), and breaking the rules can have serious consequences. If, for instance, Fleener commits an ethical violation in Guantánamo, it could be a black mark on his license in Wyoming, where he intends to practice when his tour is up at the end of this year. “Would another public defender hire him?” says Debra Patalkis, a lawyer working pro bono for Fleener on the ethics issues. “Would another defendant trust him? Tom would be damaged on many different levels.”

Complicating all this, of course, is the fact that Fleener and Kuebler are military officers, subject to a chain of command and military orders and prohibitions against insubordination. Because the commission rules were so poorly drafted, they were caught between competing loyalties—their superiors and their ethics. “It puts an ethical lawyer in a position of disobeying a military order,” Patalkis says. “This is not a hypothetical injury. This is a real problem: Do you anger the military, or do you anger the whole American system of justice?”

Those two things should never be in conflict to begin with. But given the choice, Fleener and Kuebler chose to risk angering the military. In the late spring of 2006, they were preparing to sue for their right to be fired by jihadis in Guantánamo Bay. Of course, that would have entailed naming their superiors as defendants in a federal lawsuit, most likely the convening authority and perhaps their commander in chief, President Bush. There’s nothing illegal about that, but neither would it enhance either man’s military career. “I really think Tom is on the side of angels and his motivations are pure,” Patalkis says. “But I’m concerned someday he’ll be stationed in Anbar Province writing soldiers’ wills. He laughs. I don’t.”

*****

Fleener and Kuebler never sued, because the U.S. Supreme Court briefly made their ethical conflicts disappear. On June 29, 2006, in Hamdan v. Rumsfeld, the court threw out the military-commission system, ruling that the president can’t unilaterally invent ways of trying people, even foreigners imprisoned outside U.S. territory, without congressional approval.

At the time, it was considered a resounding victory, partly for the detainees (who the court said were covered under Common Article 3 of the Geneva Conventions) but mostly for the rule of law and the separation of powers. In theory, that is true enough. In practice, however, Hamdan has transmogrified into a significant defeat—again partly for the detainees and mostly for the rule of law. The court said the commissions were illegal because Congress hadn’t authorized them—so the White House merely needed Congress to do just that. It began drafting a new military-commissions bill within weeks, and submitted it to the Republican-controlled Congress two months later, just in time for the midterm elections.

On October 17, after largely party-line votes in both the Senate and House, President Bush signed the Military Commissions Act (MCA) of 2006. It was an astonishingly radical law. For one, it gave the president the authority to declare anyone, captured anywhere, an enemy combatant who can be jailed indefinitely and without charge, precisely the sort of power against which the colonists fought the revolution. Two, it explicitly stripped the right of habeas corpus from any foreign national designated an enemy combatant. It also implicitly weakened the Article 3 protections of the Geneva Conventions by allowing the president to define “outrages upon personal dignity, in particular humiliating and degrading treatment,” which the conventions prohibit.

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For Kuebler and Fleener, there was one relative bright spot: “The accused shall be permitted to represent himself, as provided for by paragraph (3).” It’s in Subchapter IV—Trial Procedure, a simple sentence in black and white. But still, there were reasons to be skeptical, to suspect that the provision wasn’t as clear as it seemed: The “paragraph (3)” it referred to was a list of caveats that allowed self-representation to be revoked if the defendant didn’t behave to the presiding officer’s liking. So what would happen if a man’s idea of representing himself was to boycott his trial? Would a lawyer be forced on him then?

That wasn’t clear at all.

*****

There’s a little diner in Durham, North Carolina, just off the Duke University campus, where Fleener and Kuebler like to have breakfast when they’re in town, which is every few weeks, because part of the Guantánamo defense team consists of a handful of Duke law students. Kuebler’s eating his usual, a giant biscuit piled with scrambled eggs and bacon, and Fleener is checking headlines on his laptop.

It’s a glorious morning in the spring of 2007, more than five years after the military commissions at Guantánamo were first created and the day after a single detainee, Australian David Hicks, finally pleaded guilty. “This is funny,” Fleener says, without looking up from the screen. “Listen to this: ‘A day after pleading guilty,’ blah blah blah, ‘Hicks was moved to a more comfortable cell.’ ” He shakes his head. “Only in Guantánamo Bay are pretrial conditions worse than after you plead guilty.”

Fleener and Kuebler are still officially assigned to al Bahlul and al Sharbi, but neither has had to do any actual lawyering. The Hamdan decision was a reset button for the commissions, dismissing all the cases that were pending in June 2006, and neither al Sharbi nor al Bahlul has since been recharged. Their status for now is that of mere enemy combatants, squirreled away at Guantánamo, five years and counting, until the end of an endless war.

With no one to defend, without even clients to fire them, Fleener and Kuebler spend a lot of time lecturing and debating. They speak to small groups—law students and legal societies—and at public-interest symposiums, often in tandem, sometimes solo, always criticizing Guantánamo and the commissions, occasionally debating other lawyers and scholars who are more sympathetic to the administration’s policies. The debates can be quite lively. On an intellectual level, it’s intriguing stuff, untangling the threads of international law and military procedure and constitutional reach. “All of that is fascinating,” Fleener says. “But what it does is take everyone away from the facts, which are: We lock up innocent people without access to courts, and we’ve tortured people. And when you’ve got a bunch of government lawyers sitting around trying to game torture, the first thing you’d hope would happen, especially as a lawyer, is that someone would step back and say, ‘Hey, we’re trying to game torture. This isn’t right.’ And no one did that. Not one of them.”

Instead, people who swore to uphold the American ideal, beginning with the president, deliberately subverted it. They established a system of detention and interrogation—with the acquiescence of a compliant Congress and a fearful public—that no American would tolerate if it were applied to our citizens anywhere else.

“Can you imagine,” Fleener says, “if people came out and did the exact same shit we just did? Except brown people did it?” At that moment, imagining such a thing took no effort at all: Iran was holding fifteen British sailors and marines after seizing them off the coast of Iraq. “Would we get ripshit if Iran does to the Brits what we’ve done to al Sharbi and al Bahlul?”

Kuebler nods. “Yes.”

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Fleener goes further. “I think more war crimes have been committed in the detention and interrogation and fake trials of people in Guantánamo than people in Guantánamo have committed,” he says. “And I don’t think the question is whether they’ve tortured people.”

Kuebler considers that for a moment. He’s the more reserved of the two, less animated, the one who Fleener says “brings substance to my outrage.” After a bit, he slowly dips his chin, then raises it. “I think things have been done to people,” he says, “that under any definition except this administration’s very narrow one would be torture.”

The administration’s definition, obviously, is the one in play. The MCA purported to exclude from the commission trials any statements obtained through abusive interrogations, but it really doesn’t. Like the previous version, the commissions are still allowed to protect the sources and methods used to collect evidence, an invitation to launder torture, not exclude it. To use the same example: If a man was waterboarded until he coughed up a name, that can still be sanitized into a sworn statement from an interrogator that a secret source identified a terrorist. The defendant would get to see that, at least—defendants now get to see everything the jury sees—but not the how or the why behind it. Nor would his lawyer, who nonetheless would have the burden of proving that that evidence is unreliable. The only thing to prevent such a scenario is the presiding officer’s discretion.

And so it goes, blacks and whites dissolving into grays. Fleener and Kuebler still aren’t certain they won’t be ordered to represent men who don’t want them. Yes, the MCA says a defendant can represent himself, but it also says the presiding officer can revoke that privilege if he fails “to conform his deportment and the conduct of the defense to the rules of evidence, procedure, and decorum.” If al Bahlul were to say, “I reject your illegitimate court,” then sit down and hold aloft his boycott sign, is that proper decorum? If al Sharbi announces, as he has, “I did what I did,” is that sufficiently close to the rules of evidence and procedure?

No one knows.

If it is not, if the right to self-representation is revoked, Fleener or Kuebler would be seated at the defense table—because the commission regulations require a military lawyer be present. Why? Here’s one possible reason: “It’ll put the judge in a much easier position to revoke the guy’s right to represent himself,” Fleener says. “The military lawyer’s already there, and they can make him start dancing.” Which would bring everything full circle. And then what? Does representing al Bahlul mean denouncing the court and joining his boycott? Would that be insubordination? Or must he put on the vigorous defense al Bahlul doesn’t want? Does he join the show and play his role in this elaborate production?

No one knows. And maybe no one will ever know, because maybe al Sharbi and al Bahlul will never be charged. Why bother? What’s in it for the government now? Why drag unwilling players to the stage when they can be kept locked up forever, anyway?

It is so much easier to invite more compliant defendants into the courtroom. Late on the afternoon of Friday, March 23, Marine Corps major Dan Mori went to see General Hemingway in his office in Crystal City, Virginia, where they worked out a deal for David Hicks. More than five years earlier, Hicks had been on the first plane into Guantánamo, one of twenty men said to be so dangerous that they had to be chained to the floor so they wouldn’t chew through the hydraulic lines and crash the transport into the sea. He’d also been one of the first men charged—and with the spectacular crimes of attempted murder by an unprivileged belligerent, aiding the enemy, and conspiracy. In February, under the new commissions, prosecutors recommended he be charged with attempted murder in violation of the law of war and providing material support for terrorism. A month later, the attempted murder was dropped; the chief prosecutor had wanted him to do twenty years on the remaining count.

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Mori and Hemingway cut a deal for nine months (with no credit for the five-plus years he’d been locked up), most to be served in Hicks’s native Australia, where there was enormous political pressure for his release. In exchange, Hicks had to promise not to speak to the media for a year and to renounce his claims of being beaten, drugged, and anally raped while in American custody. All things considered, not a bad trade for him.

And not a bad deal for the government. It now has a conviction before the military commissions. It can now say the system works.

Except that it doesn’t.

“Mori pleaded his guy out in a naked deal to charges that weren’t a crime, before a trial in an illegal court,” Fleener says the day Hicks’s deal was announced. “And that’s considered a victory.”

He shakes his head. He likes Mori, knows he’s an excellent attorney, says he would have done the same thing for his client. And he’s not exaggerating when he calls the commissions illegal, either. In a weird quirk, the MCA allows only “unlawful enemy combatants” to be tried before the commissions. Yet everyone in Guantánamo is classified as an “enemy combatant.” It appears a semantic quibble. But not far into the future, close enough that Fleener can see it coming, two commission judges will dismiss charges against other detainees because of that single missing word, unlawful. Mori could have raised that point, could have argued the commissions had no authority to try his client, a mere enemy combatant. But then David Hicks would still be locked up in Guantánamo, uncharged and untried, serving a sentence between indefinite and forever.

Instead, he cut a deal and went home. It had nothing to do with fairness or the rule of law or any ideals that were once commonly held so sacred, so inviolable, that Guantánamo would have never existed. It’s the new paradigm. It is what it is.

“It’s to the point with Gitmo that I’m so offended by what we do down there that…” Fleener pauses, searches for the right words. “Well, it’s like, can a system be so bad that everyone involved should just disengage? This is close.”

1.4. Example: Terminating a Client?

Assume you’re a lawyer and get this email from a friend who’s also a lawyer:

Hey,

Can you give me some advice? I took on a case for a guy who seemed quite normal at the time. He owns a deli and rented a small building from a commercial landlord. There have been a lot of disputes between the Client and the landlord over the past year and the Client decided to escalate things by hiring me and having me write to the landlord—and now to the landlord’s lawyer. We’re now about 90 days away from the statute of limitations for filing suit against the landlord on some of the issues.

The client paid me $5,000 in advance fees, which I kept in my trust account until I had earned the fees. We burned through that pretty quickly and the Client has been very slow in paying bills. Right now, he owes me $7,500. And as I’ve corresponded with the landlord’s lawyer, it’s become obvious that my Client has a pretty biased view of the world. Many of the problems were his fault, in my view. Some were the landlord’s. As I worked through the issues with the Client, sometimes he’d get very angry with me, as if I were the enemy.

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Anyway, I’ve probably had all the contact with this client I can stand. Can I just fire him and keep the file until he pays me what he owes me? What are the upsides and the downsides to doing that?

Be prepared in class to discuss the black letter law on this topic and to provide sound advice.

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