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John C. Yoo is a prominent and eminently qualified academic, presently Professor of Law at the at the Boalt Hall School of Law, University of California at Berkeley. His college degree from Harvard University, law degree from Yale University, he has served as a law clerk to a Judge of the United States Court of Appeals for the District of Columbia Circuit, evaluated by some as the second most important Federal court, and to a Justice of the Supreme Court of the United States. Among other achievements, he has served as General Counsel of the United States Senate Committee on the Judiciary and as Deputy Assistant Attorney General, Office of Legal Counsel, Department of Justice. "OLC," as that office commonly is called, is the leading scholars' job in the Department of Justice - as examples, Justice Antonin Scalia and the late Chief Justice William H. Rehnquist each served as Assistant Attorney General, OLC.

What does OLC do? Its lawyers formally advise the Attorney General and ultimately various agencies of the Federal Government outside the Department of Justice. Jokingly, seriously and accurately, the Assistant Attorney General, OLC, sometimes is called the President's lawyer's lawyer.

The point presently, sadly and dangerously now at issue goes well beyond OLC. Can a lawyer be sued because he or she wrote an opinion upon which a Federal agency relied to the detriment or alleged detriment of somebody who files a lawsuit against the lawyer? If so, does the ultimate so-called "correctness" of the lawyer's opinion have any bearing upon the merits of any such litigation?

Professor Yoo wrote an opinion analyzing the authority of the Federal Government concerning treatment of terrorist- or alleged terrorist-type prisoners. That one might (as this writer does) concur, or might not concur, in the rationale of such an opinion is irrelevant. The question is whether a lawyer fulfilling his duty to advise a client and in so doing writing an objective and scholarly opinion may be sued civilly by somebody who in due course adversely was affected by the action taken in reliance upon the opinion.

One need not be a lawyer or a layman consulting a lawyer to realize that if a lawyer so writing personally is susceptible to a lawsuit against him one of the most essential and fundamental of attorneys' duties would risk vanishing. With it would risk vanishing the ability of a layman - government official, businessman, spouse, estate administrator, whatever - to seek legal advice.

Our country - unfortunately and accurately - is known among informed people all over the world for the seemingly limitless extent to which we litigate. This is another example. Inasmuch as the case now is pending it would be inappropriate for me, a fellow lawyer, to comment with particularity about the merits of the case.

Suffice it to say the risk is manifest to all Americans. If a governmental lawyer or former governmental lawyer personally could be sued because somebody suffered, or allegedly suffered, from a consequence of action which the actor took relying upon a lawyer's opinion there would be no end to the applicability of litigation. Any attorney performing his duty by researching and writing an opinion to a client would become a potential defendant. In the context of the Yoo facts every or almost every jailbird would have the right to sue some attorney who wrote an opinion.

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