Loyalty Testing for Attorneys: When Is It Necessary and Who Should Decide?

Authors

Mary Elizabeth Basile, University of North Carolina School of Law

Abstract

The concept of loyalty has been manipulated to mean different things with respect to the profession of law depending on the political climate brought about by national crises throughout the history of this country. An attorney's loyalty to his country has referred to more than mere allegiance and support of the laws of the sovereignty in that it has been understood to concern specified beliefs, doctrines, and associations. It has been tested through the imposition of loyalty oaths from the colonial days through the Civil War and Cold War, to the current post-September 11 era in which the government's emphasis on patriotism has impacted, and in some cases, compromised the professional integrity of attorneys. This Article explores whether purely national security interests may be fairly imposed upon an attorney's ethical obligations, given his unique position in society, by considering how the values of freedom of association and freedom of belief compete with the obligation of attorneys to uphold and defend the Constitution. It proposes a balanced approach of particularized inquiries by the courts into suspicious attorney conduct that avoids over-inclusive investigations that may capture instances where security interests are unrelated in any legitimate way to the attorney's representation of a client. The following discusses connections between various historical periods and suggests that history, brought to light through an examination of the papers of Erwin N. Griswold, in which he criticizes the lack of procedural safeguards in loyalty inquiries before Congressional bodies in the 1950s, may guide the debate over restraints on the attorney role in current times. The Article sets the controversy in a larger framework of ethical standards governing attorney conduct generally when attorneys may more readily identify themselves as members of legal communities whose responsibilities transcend nation-state borders. In light of the history of unsuccessful attempts by the bar to test the loyalty of attorneys and place restraints upon representation of clients, this Article argues that questions of ethical standards for attorneys may best be left to the courts.

Disciplines

Constitutional Law | Fourteenth Amendment | Law | Legal Profession

Recommended Citation

Mary E. Basile, Loyalty Testing for Attorneys: When Is It Necessary and Who Should Decide?, 30 Cardozo L. Rev. 1843 (2009).
Available at: https://larc.cardozo.yu.edu/clr/vol30/iss5/2