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Former Assistant AG Daniel Levin and the Importance of Hands-On Experience in Advising on the Law

What does former Assistant Attorney General Daniel Levin have in common with the lawyers who formulate the bars' policies on legal ethics?  Unfortunately, nothing, and that's too bad.  Because bar regulators can learn plenty from Levin's heroic example of trying to really, truly understand and experience the subject on which he was providing legal advice; in this case, waterboarding.

As the question of whether waterboarding (a form of controlled drowning) is, or should be, considered illegal torture takes center stage at the Mukasey confirmation hearings, the backstory on the Bush Administration's infamous torture memo has now emerged, including former Assistant AG Daniel Levin's role in drafting the memo.  According to these reports, Levin voluntarily submitted to waterboarding so that he could determine for himself, based on first-hand experience, whether it fell within the legal definition of torture.  Following his experience, Levin concluded that waterboarding did indeed constitute torture, unless performed in closely supervised circumstances.  As described in this post at Balkinization, when Gonzales was appointed Attorney General he replaced Levin with another lawyer who gave Gonzales the legal advice he preferred.

Levin's hands-on approach came to mind as I read this article, Mind the Ethics of Online Networking, which warns attorneys of the ethical perils of participating in social networking sites like

MySpace or LinkedIn. The article discusses bar regulation of Internet communication and suggests that bars could eventually go after attorneys who engage in social networking for a litany of violations, such as impermissible solicitation or unethical attorney advertising.   As Kevin O'Keefe suggests, the bars' mentality reflects fear of new developments; he points out that even the invention of the telephone initially raised the bars' concern.  But in my view, regulators wouldn't be so concerned if they experienced cyberspace for themselves -- by setting up a MySpace site, a LinkedIn account and a blog.  And based on personal experience, they could make more informed and sensible decisions.


At one level,  Levin's decision to submit to waterboarding will lead to the end of this primitive and abusive tactic.  But Levin's actions also remind us that sometimes legal research and analysis and theory can obscure, rather than clarify the logical and correct result.  At the end of the day, it just may be that legal advisors and regulators need to get their hands dirty to achieve the cleanest result.

Posted by Carolyn Elefant on November 6, 2007 at 04:51 PM | Permalink | Comments (0)


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