Case Document 278-2 Filed 11/01/17 Page 22 of 104 Ellen Yatoshefsky Attorney {170 West Iind Avenue, I New York. NY [?025 5 I 6463?5382 October 5. 2017 Mr. Rick Kammen Kammen and Moody 135 N. Street. Suite 1 I75 Indianapolis. Indiana 46204 Re: Guantanamo Military Commission Case (Thames A lid ul?Rahim Hump-in Muhammad cri?Nushiri Dear Mr. Kammen: This letter is in response to your request for an opinion regarding your ethical obligations in this matter. You have advised me that you are learned counsel (death penalty counsel) for Mr. al- Nashiri who is charged with capital crimes before a Military Commission in Guantanamo Bay. You provided me with the facts set forth below as well as a document. attached hereto. entitled "Governmental Interference with Attorney-Client Communications- Intrusions Into Attorney- Client Relationships. Undisclosed Monitoring. and Infiltration of Defense Teams" (Exhibit A). You are admitted to practice in Indiana. 1 have no personal knowledge ofthe facts ofthis case. In rendering, my opinion. I rely upon the facts set forth below and the document provided (Exhibit A). Some ofthe facts below contain references to redacted material because some ofthe information is classi?ed information. My opinion is predicated upon the standards ofcare and governing standards of professional conduct set forth in the Model Rules of Professional Conduct (governing lawyers in the various branches ofthe .3. military)- Indiana Rules of Professional Conduct and that of every state in the country. as well as related ethics opinions and case law. I have also relied upon Case Document 278-2 Filed 11/01/17 Page 23 of 104 standard treatises in the area of legal ethics. The ethical and ?duciary duties identi?ed below are ?rmly established. My opinion is expressed to a reasonable degree of professional certainty. Mv {Qualifications 1 am the Howard Lichtenstein Professor of Legal Ethics and the Director of the Monroe H. Freedman Institute for the Study of Legal Ethics at the Maurice A. Deane School of Law at Hofstra University in New York. My quali?cations to serve as an expert witness on legal ethics are set forth more fully in my curriculum vitae. attached as Exhibit B. It describes my educational background. legal experience. bar admissions. academic af?liations. professional activities. bar committee memberships. publications and participation as a lecturer at bar seminars. LE panels and at other organizations on matters related to professional responsibility. Brie?y. I have taught courses in the field oflawyer regulation for the past twenty- threc years and was named to my current position in 2016. Before that I was the Director of the Jacob Burns Ethics Center at the Benjamin N. Cardozo School of Law School from 1994-2016. have published numerous articles in the field and have produced materials for the American Bar Association and other organizations. I have spoken widely on legal ethics including continuing legal education programs before numerous bar associations. lawyer associations. and law schools. I serve on the New York State Bar Association ommittce on Standards for Attorney Conduct as well as the ommittec for Professional Responsibility of the Association of the Bar ofthe City ofNew York. I am co-chair of the Ethics Advisory Committee ofthe National Association ofCriminal Defense Lawyers. I am also the ethics adviser to the Prosecutorial and Judicial Complaint Center ofthe New York State Association of Criminal Defense Lawyers. I am on the Board ofAdvisors of the New York County Lawyers Ethics Institute and a member of its Professional Ethics Committee. I served as co-chair ofthe ethics committee oi'the Criminal Justice Section ofthe American Bar Association. I regularly consult with lawyers and law ?rms on a wide range ofmatters related to legal ethics. have served as an ethics expert in litigation. Case Document 278-2 Filed 11/01/17 Page 24 of 104 Factual Basis You have provided the following facts: Mr. a] Nashiri is charged with capital crimes before a military Commission in Guantanamo Bay. Mr. al-Nashiri was charged in 2008- and his case has been pending since 2011. The attached Exhibit A ?Governmental Interference with Attomey~Client Communications, Intrusions Into Attomey-Client Relationships. Undisclosed Monitoring. and In?ltration of Defense Teams" established that prior to 2017. there was a significant history of actual and attempted governmental intrusion into the attorney-client relationships. including the placement oflistening devices in attorney-client meeting rooms. On June 14. 2017. the Chief Defense Counsel. Brig. Gen. John Baker. USMC. issued a memo. notifying defense counsel that he recently came into possession ofinformation raising concerns that defense attorney-client con?dentiality had been and/or would be breached again. As a result. he advised all defense counsel to discontinue attorney-client meetings with their clients until they could "know with certainty that improper monitoring of such meetings is not occurring." In late June. 2017. prosecutors represented to the military judge presiding over the Nashiri case that the general?s concerns did not affect the spaces in which Al-Nashiri meets with counsel. However. as re?ected in pleadings filed with the US Supreme Court. defense counsel obtained information ?then contradicting the prosecution's assurances." Furthermore. the Chief Defense Counsel. who is aware of the redacted facts. described above recently stated publicly. "nothing has changed to cause me to change my advice. Indeed. the more I learn. the more resolute I have become in my position." After Mr. al?Nashiri's defense team received General Baker's advice in June 2017. it tiled a series of motions seeking discovery. an evidentiary hearing. and permission to inform the client about the risks to attorney?client con?dentiality. These motions like the redacted information contradicting the prosecution's assurances are classi?ed. Case Document 278-2 Filed 11/01/17 Page 25 of 104 I Despite the request for further discovery. to present evidence and to make argument. the military judge issued a series of rulings the body of which are classi?ed. I Tlte military judge denied the requests for discovery as well as the request to have a hearing to determine the extent to which defense attorney-client con?dentiality had been or would be in the future compromised. The Judge denied these requests even though the prosecution?s previous assurances had been contradicted. I The Judge also prohibited Mr. al-Nashi?s defense lawyers from informing the client ol?the General Baker?s concerns or the facts underlying those concerns because the information is classi?ed and the tnilitaryjudge has no authority to permit disclosure to someone (Mr. al? Nashiri) who has no clearance. I You state that "We have no other means by which to assess the level of risk of intrusion into attorney-client con?dentiality." You assess that risk to be substantial and ongoing, based upon past practice by the government. (Exhibit A). the evaluation ofthe Chief Defense Counsel. and classi?ed information within your possession. I Following the hiefDefense Counsel?s advice not to utilize attorney?client meeting spaces in Guantanamo. neither you nor your team have had a substantive meeting with the client since June ofl?l 7. I Mr. Nashiri has expressed concern about the lack of any substantive meeting. You have advised him in sum and substance that the defense is precluded from explaining anything regarding the situation to him. including obtaining his informed consent to the risks of disclosure of his conlidences. I In response to Mr. AI Nashiri's inquiries. the defense has had to tell him "that with respect to our visits. the situation has become even more complicated as a result of rulings that we ethically need to share with him but are precluded from doing so." Your recent correspondence with him included the following statement: "But as for now. for reasons that you absolutely need to know. and have a right to know. but that we are not allowed to tell you. it is necessary that we not visit with you." Case Document 278-2 Filed 11/01/17 Page 26 of 104 Opinion The conduct ofmilitary and civilian lawyers who appear before the Military Commission is governed by Model Rule of Professional Conduct and the Rules for Military Commission as well as the Rules of Professional Conduct of the individual state where the lawyer is admitted to practice. You are admitted to practice in Indiana and subject to the Indiana Rules of Professional Conduct. In this matter- the applicable MRPC and are the same. A bedrock professional obligation is that the lawyer shall provide competent representation to a client. MRPC Ll; IRPC l.l: RMC 502 (5) (specifying duties of defense counsel). Competent representation includes the legal knowledge. skill. thoroughness. and preparation reasonably necessary for the representation. The accompanying commentary to MRPC l.l provides that "[c]ompetent handling ofa particular matter includes inquiry into and analysis of the factual and iegal elements of the problem. and use of methods and procedures meeting the standards ofcompetent practitioners. It also includes adequate preparation." Lawyers must obtain necessary and sufficient information to provide sound and informed advice to a client. Thus. the lawyer must undertake "depth and quality" [in an] investigation to ensure compliance with the law. v. (Eritrea! States 449 U.S. 383 1981). Essential to competent representation is the lawyer's corollary duty to maintain con?dential communication. The foundation ofthe attorney-client relationship is the free exchange of information and the frank and full disclosure necessary to provide effective representation. Without this free exchange and promise ofconfidentiality. especially through language and cultural barriers. the ability to provide competent counsel is seriously impaired. This foundational duty ot?contidentiality. dating from the common law. has been recognized as fundamental to any representation throughout modern history. See eg. In re Seslnr. 15 NJ. 393. 105 A. 32d 395 (1954] (discussing the common law history ofthe attomey-client privilege). This duty ofconlidentiality is in the legal ethics rules of all jurisdictions in the United States and re?ected in the RMCs. It requires that the lawyer maintain confidentiality ofall information related to representation. both attorney-client privileged information and other "inlbt?mation related to the representation ofa client." MRPC 1.6 (See (failed States v. 60 MJ. 198. 209 (C.A.A.F.) {explaining that the ?attorney-client privilege is Case Document 278-2 Filed 11/01/17 Page 27 of 104 a rule of evidence that applies injudicial proceedings while the rule ofcontidentiality is a mandate of professional ethics that applies beyond the courtroom RMC Rule 502 provides that "Defense counsel must: guard the interests ofthe accused zealously within the bounds of the may not disciosc the accused's secrets or confidences except as the accused may authorize.? The lawyer may not reveal con?dential information without informed consent of the client or except as authorized by specified exceptions to the con?dentiality rules. None of those exceptions are applicable here. Part and parcel of your ethical duty in this case is to obtain sensitive infomtation necessary to this representation and to provide assurances to the client that the information will be. kept confidential and not shared with the government. Even in circumstances where a con?dential meeting space is secured. a lawyer will often have dif?culty discussing sensitive information and obtaining the client's trust. In charges that could result in the death penalty. the fact that the government is privy to the lawyer?client discussions chills any substantive communication. Without the assurance ofcon?dentiality- the client may be reluctant to reveal information to the lawyer and the lawyer cannot seek to obtain such information from a client. A lawyer is ethically prohibited from communicating with the client. notably about sensitive matters. when that lawyer believes that there is a substantial and ongoing risk that the government can listen to the communication. Once a lawyer or a client ?believe that the government is listening. there will be no free exchange ofinformation and the client's defense is harmed." .-?Vurirmm' Association ofC'riminoi Defense Lon-yen Ethics .?iih?h?f?ij? Opinion 02-02 at 5. n. 4 (2002) (hereinafter NACDL issued three opinions about the fundamental ethical obligations ofcivilian counsel in Military Commissions in 200]. 2002 and 2012. Ethics Advisory 024)] [November 2002): i?y?x'K'DL Ethics 03?04 (August 2003): ALLICDL Ethics {February-2012). Each of these opinions affirms the fundamental ethical obligation of defense counsel to ensure and protect client con?dential communications. Not only must a lawyer be competent. but the lawyer had a duty of loyalty to the client. The lawyer is the client's ?duciary and deals with matters ?most con?dential and vital to the client." Restatement of?the Lair (jamming Luna-yrs. ?16. Assurances of loyalty are essential Case Document 278-2 Filed 11/01/17 Page 28 of 104 and that duty prohibits the lawyer from harming the client. Thus. the lawyer is prohibited from using or disclosing sensitive information about the client and the laWyer has ?an ethical to take af?rmative action to protect the con?dentiality ofattorncy client communications from government surveillance. Ethics 0p. 02-01 at 1 (Nov 2002). Consistent with these ethical duties is your obligation ot'diligcnce. lawyer shall act with reasonable diligence and promptness in representing a client. 1.3: MRPC 1.3. Thus. the duties ot~ competence and diligence require you to undertake action to challenge the substance of orders or practices that prevent a lawyer from providing competent representation and assuring con?dentiality. Ethic-s .?id?t?fh'urji? Op. 12-01 at 2 (February 2012) (duty to challenge orders that interfere with ethical obligations). You have ful?lled this obligation by undertaking necessary steps to seek to end the surveillance. initially by attempting to discover the extent ot'it. You have ?led a series ofmotions seeking discovery and an evidentiary hearing. and have made arguments to the militaryjudge to attempt to remedy this lack of ability to communicate con?dentially with your client. the military judge denied the requests for discotcr} as Hell as the request to base a hearing to determine the extent to uhich attorney-client con?dentiality had been or nould be in the I'uture compromised. lhe Judge denied these requests though the prosecution's previous assurances about eonlidcntialil} were later contradicted. You more prohibited Irom informing Mr. LII-Nashiri ol'ticncl'u! Baker's concerns about intrusion into the attorney -c ient relatit'unship or the I'aets under!) im:I those concerns because the information is classi?ed and the military judge has no authority to permit disclosure to Mr. al- Nashiri nho does not hax clctu?ancc. "I?hcre is no atailablc judicial or other recourse to challenge your inabilit} to communicate con?dentially with your client. Moreover. classi?ed information prevents you from explaining to your client the reasons for lack of'cort?dentiality. Consequently. you cannot even meet with your client in con?dence to discuss the reasons that you cannot provide competent representation. Your client has enquired about the fact that you have not met with him. You cannot comply with your ethical duty to communicate with your client under these circumstances. Case Document 278-2 Filed 11/01/17 Page 29 of 104 MRPC 1.4 provides that: A laWyer shall: (1) inform the client ot'any decision or circumstances with respect to which the client's consent . . . is (2) reasonably consult with the client about the means by which the client?s objectives are to be accomplished; keep the client reasonably about the status of the matter: comply with reasonable requests for information: {bi A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. The current situation set forth in the facts causes you to violate your duty of communication to your client. This situation is untenable. This ethical quandary is profound and not reconcilable with your ethical obligation under the IRPC and the to act diligently and competently, to maintain con?dentiality. and adhere to the duties of loyalty and communication. You cannot, consistent with your ethical obligation continue to represent Mr. al-Nashiri. Rule 1.16 of Professional Conduct mandates that you withdraw from representation. It provides that a lawyer ?shall withdraw from representation of a client iflhe representation involves a violation of the rules of professional conduct or other laws? You are required to withdraw as his counsel because continued representation will result in a violation of IRPCS and 1.1. 1.3 1.4 and 1.6. Yours truly. $191. Ellen Yaro' sky