Finding federal government attorneys from the Department of Justice engaged in a “calculated plan of unethical conduct”, a federal judge in Texas has ordered hundreds of the agency’s lawyers to receive formal ethics training as a sanction for lying about the status of more than 100,000 migrants. See Texas v. United States, Civ. No. B-14-254 (S.D. Tex. May 19, 2016) (click here for the Texas Court’s Order).
In a scathing 28-page opinion, U.S. District Judge Andrew S. Hanen found that Justice Department lawyers knowingly made multiple misrepresentations of fact to the court and opposing counsel in the course of a lawsuit filed by Texas and 25 other states challenging the Obama administration’s immigration policy. Judge Hanen wrote that DOJ’s lawyers breached “the most basic ethical tenets” and that, “The misconduct in this case was intentional, serious and material. In fact, it is hard to imagine a more serious, more calculated plan of unethical conduct.”
“Clearly,there seems to be a lack of knowledge about or adherence to the duties of professional responsibility in the halls of the Justice Department.”
By way of background, in 2012, the Obama administration implemented the Deferred Action for Childhood Arrivals (DACA) program. The DACA gave immigrants who came to the United States as children, went to school, and did not commit any serious crimes the chance to apply for two-year “lawful presence” rights to be free of deportation and obtain work permits. In 2014, the program was modified to extend the DACA deferred-deportation period to three years and to expand protection under the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). Both programs were the result of a November 2014 Department of Homeland Security (DHS) directive.
In 2014, twenty-six states sued to enjoin the entire DHS directive, including the expanded DACA. Initially, the plaintiff states requested a hearing on their motion be held before December 31, 2014. The plaintiffs and the court agreed to a later hearing date after receiving reassurances by DOJ and DHS attorneys that the Government would not begin accepting requests for deferred action until February 18, 2015. On February 16, 2015, the district court issued an order enjoining the Government from implementing “any and all aspects” of the DACA until “further order of this Court, the Fifth Circuit Court of Appeals or the United States Supreme Court.” The case is now pending before the Supreme Court. The only issue left for the district court was, therefore, the sanctions to impose for the Government attorneys’ violations of their ethical duties.
Judge Hanen explained that, contrary to the federal government’s representations to the court and the opposing parties, since late-November 2014 (and thus well before the alleged February 18, 2015 start date), DOJ’s lawyers were well aware of the fact that the Department of Homeland Security had already granted or approved over 100,000 DACA applications. Judge Hanen found that the Justice Department lawyers “knew the true facts and misrepresented those facts to the citizens of the 26 Plaintiff States, their lawyers and this Court on multiple occasions.”
The court further found that the number of applications processed–whether it was 1 person or 100,000 people–to be irrelevant. The court explained that the “magnitude does not change a lawyer’s ethical obligations. The duties of a Government lawyer, and in fact of any lawyer, are threefold: (1) tell the truth; (2) do not mislead the Court; and (3) do not allow the Court to be misled.” See ABA Model Rule 3.3 cmts. 2 & 3. The court held that the Government’s lawyers “failed on all three fronts.”
The court further held that not only did DOJ lawyers violate their ethical duties, they also violated federal law: the so-called McDade Amendment, 28 U.S.C. Section 530(B), which provides:
Ethical standards for attorneys for the Government
(a) An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorney in that State.
(b) The Attorney General shall make and amend rules of the Department of Justice to assure compliance with this section.
The Sanctions Order
Judge Hanen ordered that “any attorney employed at the Justice Department” who appears, or seeks to appear, an a court (state or federal) in any of the 26 plaintiff states annually attend a legal ethics course taught by “at least one recognized ethics expert” unaffiliated with the Justice Department. The Court further ordered that, at a minimum, the course should include at least three hours of ethics training per year.
Judge Hanen further ordered the Attorney General to provide the Court with a comprehensive plan “to prevent this unethical conduct from ever happening again.”
Moreover, while this was a civil action, there should be no doubt that the standards apply to government lawyers in criminal as well as bar disciplinary cases, which are considered quasi-criminal. Indeed, Judge Hanen’s decision calls to mind a disciplinary decision from the Supreme Judicial Court of Massachusetts scolding Bar Counsel for their failure to play by the same ethics rules they purport to enforce:
Indeed, what is troubling on this record is bar counsel’s own persistence in pressing a theory of issue preclusion that has been shown to be so demonstrably unfair. Just as we expect prosecutors in criminal cases to pursue an overarching goal of justice, and not just the zealous pursuit of convictions, I expect bar counsel to pursue an overarching goal of justice, and not just the zealous pursuit of discipline.
In re Dianne F. Dillon, No. BD-2004-040 (Mass. Sup. Jud. Ct. Aug. 30, 2014).
The district court’s message could not be more clear: whether you are a government attorney involved in criminal or civil litigation, or if you are enforcing the rules of attorney discipline as “bar counsel,” you must play by the same “rule book” that governs all lawyers. Indeed, Judge Hanen’s decision serves as a stark reminder that Government attorneys are not “above the law” and any misconception by attorneys representing the Government that the ends justify the means “erodes the public trust in our justice system, and chips away at the foundational premises of the rule of law.”