intended to be a discussion of the propriety of the protective orders, rules, and secrecy requirements of the Guantanamo tribunals. It is intended ONLY to discuss the narrow issue of whether complying with the applicable rules of a forum violates Illinois Rules of Professional Conduct, in particular rule 1.4:Communication
(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."
(In many ways, this same argument applies to representing clients in jurisdictions with laws we consider bizarre--there's a difference between challenging the law, and breaking it.)
The presenter, Ms. Gorman, states that the protective rules she operates under regarding classified information force her to violate Rule 1.4. She also seems to think that this situation is unique to Guantanamo. I disagree regarding the alleged violation, and I argue the situation is not unique to Guantanamo, military tribunals, or even to criminal-type proceedings.
I have often represented corporations in litigation where confidential information from the other side was disclosed to counsel (and, in some cases, outside experts) who agreed to keep the information from the client. This information could generally be classified as "trade secrets", which are secrets of a different sort. Sometimes this included marketing information regarding marketing strategies, customer demographics, etc; sometimes this included technical details regarding the process of provisioning services to customers; and sometimes this included other data. In many cases, it was indeed information that my client would have liked to see and would have found useful--both in countering opposing marketing and in avoiding technical problems. In some cases, the requirements of the protective orders and confidentiality agreements prevented me from discussing some case elements with the most knowledgeable person available, an employee of the client, and my client could not afford to hire an outside expert. Nevertheless, my client was better off for my awareness of information that I could not share.
The attorney's choice is not whether or not to share the information with the client in this circumstance, it is whether or not the client is better off with the attorney knowing the information, realizing it must be kept from the client. I have a hard time envisioning a situation where the client would be better off because his attorney was ignorant of information that was related to the case but that could not be shared with the client.
I cannot believe that compliance with the applicable law of a forum, including protective rules and orders issued under those laws, would be found "not reasonable" under Rule 1.4. AGAIN, I am NOT
defending the law or rules of Guantanamo, but merely discussing Rule 1.4. (And challenging those forum rules, as opposed to breaking them, is proper--and may even be an ethical obligation for the lawyer concerned.)And yes, I've been faced with difficult situations--such as where my client was about to make a terrible choice purchasing inferior equipment, but I was unable to convey that the equipment was inferior because of a protective order. Sometimes it's not easy, and it's not fun, to comply with secrecy requirements of a forum--but such compliance does not violate Rule 1.4. If anyone ever told you the practice of law would always be easy and fun, they were incorrect.