By Samson Habte
May 20 — A federal judge May 19 ordered Department of Justice lawyers to take an ethics course every year for the next five years as part of a sanction for what the judge described as a “calculated plan of unethical conduct” carried out by DOJ lawyers during a high-profile immigration case ( Texas v. United States, 2016 BL 162721, S.D. Tex., Civ. No. B-14-254, 5/19/16 ).
The blistering opinion, issued by Judge Andrew S. Hanen of the U.S. District Court for the Southern District of Texas, castigated DOJ attorneys for breaching “the most basic ethical tenets” while defending a lawsuit that challenges Obama administration directives that would shield millions of immigrants from deportation.
Hanen said the DOJ lawyers misled him and opposing attorneys who represented 26 states that have challenged the legality of the executive orders in a case that is now before the U.S. Supreme Court. The government asked Hanen May 31 to stay his order “pending further review.”
Hanen ruled out two common remedies for attorney misconduct—striking pleadings and monetary penalties—and instead fashioned an unusual set of sanctions that could require hundreds of DOJ lawyers to attend annual ethics classes for five years.
The court said the ethics training mandate applies to “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.”
Hanen also directed the government to submit under seal a document that identifies about 100,000 immigrants who were granted relief under the challenged policies before Hanen halted their implementation.
The sanction order instructed Attorney General Loretta Lynch to “take the necessary steps to ensure that DOJ attorneys act honestly in the future.” Hanen asked the attorney general to:
Another simultaneously issued order—filed under seal—revoked the pro hac vice status of unidentified DOJ lawyers who Hanen said acted unethically in court.
Hanen's sanctions were in response to what he described as the “intentionally deceptive” conduct of DOJ lawyers who appeared in his courtroom to defend a lawsuit in which Texas and 25 other states sought to enjoin the Obama administration from carrying out immigration-related executive actions announced in late 2014.
Those directives built on a 2012 executive order that announced the Deferred Action for Childhood Arrivals policy (DACA), which granted a two-year reprieve from deportation and work authorization to a subset of young undocumented immigrants.
One of the 2014 orders expanded DACA to provide for three years of relief; another order created the Deferred Action for Parental Accountability (DAPA) program, which offered similar relief to undocumented parents of U.S. citizens and lawful residents.
In February 2015, Hanen issued a preliminary injunction that blocked implementation of the new DAPA program and the expanded DACA policy.
Hanen said that in the proceedings leading up to that ruling, DOJ lawyers misled him and opposing counsel about whether the Department of Homeland Security had begun processing requests from immigrants seeking relief under the new programs.
“For example, on February 23, 2015, the Government lawyers wrote that: ‘DHS was to begin accepting requests for modified DACA on February 18, 2015,” Hanen said. “This representation was made despite the fact that in actuality the DHS had already granted or renewed over 100,000 modified DACA applications using the 2014 DHS Directive.”
The court said it appeared that lawyers “somewhere in the halls of the Justice Department” unilaterally decided that DHS's actions in granting DACA renewals were “immaterial and irrelevant to this lawsuit and that the DOJ could therefore just ignore it.”
Hanen said that argument was indefensible. “[T]he Government’s attorneys effectively misled the Plaintiff States into foregoing a request for a temporary restraining order or an earlier injunction hearing,” he said.
“The misconduct in this case was intentional, serious and material,” Hanen wrote. “In fact, it is hard to imagine a more serious, more calculated plan of unethical conduct.”
The court found that the government lawyers in this case violated Texas Disciplinary Rules of Professional Conduct 3.03 (candor toward tribunals), 4.01 (truthfulness in statements to others) and 8.04(a)(3) (conduct involving dishonesty, fraud, deceit or misrepresentation), as well as the corresponding ABA Model Rules of Professional Conduct.
“Counsel's conduct in this case was not only unethical, but a failure to comply with federal law,” Hanen said, citing the McDade Act, 28 U.S.C. §530(B), which requires federal prosecutors to comply with the ethics rules of states in which they appear.
In a footnote, the court said misrepresentations in the government's pleadings also “clearly breach Federal Rule of Civil Procedure 11(b).”
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The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.
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