Therefore, this Court, in an effort to ensure that all Justice Department attorneys who appear in the courts of the Plaintiff States that have been harmed by this misconduct are aware of and comply with their ethical duties, hereby orders that any attorney employed at the Justice Department in Washington, D.C. who appears, or seeks to appear, in a court (state or federal) in any of the 26 Plaintiff States annually attend a legal ethics course. It shall be taught by at least one recognized ethics expert who is unaffiliated with the Justice Department. At a minimum, this course (or courses) shall total at least three hours of ethics training per year. The subject matter shall include a discussion of the ethical codes of conduct (which will include candor to the court and truthfulness to third parties) applicable in that jurisdiction.
Whether the court has the authority to issue an order requiring lawyers working in the Department of Justice in 26 states to take an ethics course is unclear. How many lawyers this involves is unclear, but they weren’t the lawyers who appeared before Judge Hanen and whose conduct gave rise to the order.
On the other hand, it’s not like the optics of the United States Department of Justice resisting the imposition of an ethics course would look good either. Which goes back to why Judge Hanen found such a drastic and pervasive remedy necessary and appropriate.
But he nonetheless proceeded to chastise the administration for what he says were a number of misrepresentations in court filings and appearances by lawyers in the course of the litigation. These “misstatements,” he said, misled him and the 26 states that sued the government over its implementation of Obama’s plan to defer deportations for millions of undocumented immigrants.
“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,” Hanen wrote. He also said his court “would be remiss if it left such unseemly and unprofessional conduct unaddressed.”
Namely, Hanen accused Justice Department lawyers of not having told him or the states that the Department of Homeland Security had already granted relief under the immigration programs to more than 100,000 undocumented immigrants while the programs, first announced in November 2014, were being challenged in court.
Despite some being distracted by the word “immigrant,” which combined with their new-found appreciation of the DoJ’s sensibilities, gave rise to a sudden concern for DoJ’s welfare, the fact that the judge found such flagrant misconduct is huge. Even if the side of social justice feels that it’s acceptable for the government lawyers to do so when it benefits their position, because, well, justice.
But for those whose view isn’t tainted by outcome, who don’t adhere to the “end justifies the means” excuse for flagrant impropriety by the government, there remains a disconcerting aspect of Judge Hanen’s bold, maybe even excessive, findings. He called the government’s conduct every bad word one can use to describe a lack of candor, an absence of truthfulness, a misrepresentation.
But there is one word missing in his 28-page opinion. Lie.
Candor is required by all rules of ethics that could possibly apply here. One definition of “candor” describes it as being “[t]he quality of being open, honest and sincere.” Candor, BLACK’S LAW DICTIONARY (10th ed. 2014). The “duty of candor” under which lawyers operate is a bit broader. It is a “duty to disclose material facts; esp[ecially], a lawyer’s duty not to allow a tribunal to be misled by false statements, either of law or of fact, that a lawyer knows to be false.” Duty, BLACK’S LAW DICTIONARY (10th ed. 2014).
Of course, that was not the case here. Counsel in this case violated virtually every interpretation of candor. The failure of counsel to inform the counsel for the Plaintiff States and the Court of the DHS activity—activity the Justice Department admittedly knew about—was clearly unethical and clearly misled both counsel for the Plaintiff States and the Court.
Strong words. Harsh words. Lots of words. All leading to the inexorable conclusion:
This Court has found no authority to support the concept that it is ever ethical and appropriate conduct to mislead a court and opposing counsel; nor has the Government provided any authority to that effect. That being the case, the Court finds no need for a comprehensive dissertation on the duty of candor and honesty because counsel in this case failed miserably at both. The Government’s lawyers in this case clearly violated their ethical duties.
That this reflects a failing of massive significance isn’t in doubt. Whether it harkens back to the Thornburgh Memorandum or reflects the current rationalizations that the executive branch has greater dragons to slay than honesty and candor to the court would permit, the fact remains that the government’s lawyers do not see any duty on their part to tell the truth.
But despite Judge Hanen’s harsh words, hard conclusion and clear condemnation, there is one word, a mere three-letter word, that appears nowhere in his opinion. Lie.
What is it that prevents a judge who writes an order, who reaches a conclusion, expressed in every permutation of the concept, from calling what the government did here what it is?
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. There were over 100,000 instances of conduct contrary to counsel’s representations; such a sizable omission cannot be classified as immaterial.
They lied. They are liars. And ordering DoJ lawyers to take a three hours ethics class doesn’t make them ethical. They know what they did. They know what their obligation of candor and honesty is supposed to be. They know it. They just lied. And if no judge is willing to call it out, to use the one word that clearly and accurately embodies what the government did, there is no chance any remedy is going to change things.
Say it, judge. They lied.