The Perilous War Over Legal Ethics in Government and Politics
On its current course, it cannot end well.
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The Trump administration is waging a war against the legal profession on a number of fronts. It has issued orders targeting law firms because their lawyers or representations offended this president. Courts have ruled decisively against these orders, but the administration is forging ahead with appeals. Now the Department of Justice is readying a rule to insulate its lawyers from the consequences of failing to comply with the rules of professional responsibility. It justifies this rule in part as necessary to protect “the broad statutory authority of the Attorney General to manage and supervise Department attorneys,” but also as a defense of its lawyers from the “unprecedented weaponization of the State bar complaint process.” To put a fine point on the second of these rationales, the deputy attorney general has denounced the District of Columbia Bar, which supports the courts in the enforcement of the rules, as a “blatantly Democrat-run political organization.”
How these actions may affect the profession will depend on how far the administration is willing to take this fight, but also on how the conflict is understood and how the defense against the administration is conducted. This is a more complicated story than it is often made out to be. In this piece, I focus on just two specific issues that pose a challenge to the structure of ethics rules and their enforcement in the federal government.
To be sure, Donald Trump’s disregard for the law and his expectation of personal loyalty above all else in his lawyers are at the heart of the problem. But the current controversies over lawyer misconduct have also exposed longstanding weaknesses in the disciplinary rules, which are the result of the bar’s failure over many years to prescribe more clearly the ethical responsibilities of government lawyers. At the same time, the ethics rules and enforcement process have been swept up in the polarizing and weaponized politics of the day. Scores of bar complaints have come to be filed, a large number filed by organizations dedicated to this specific mission. The administration is now seizing on its adversaries’ enforcement strategies to bolster the claim that because “political activists” have weaponized the rules, the Department of Justice must assume effective control over their enforcement against its lawyers.
The combined effect is to pose a major challenge to the establishment in clear terms of the ethical responsibility of government lawyers.
The Bar Rules
As Professor Stephen Gillers has written, the ethics rules have “surprisingly little” to say about government lawyers: “Most provisions in the Model Rules do not distinguish among practice areas. They treat all lawyers the same.”
Under a statute passed in 1999, the McDade Amendment, the rules that apply to government lawyers as well as all others are those of the jurisdiction in which they practice. In more typical administrations, these rules have tended to provide adequate, day-to-day guidance. For example, all lawyers are bound to exercise their independent professional judgment, and their duties of competent, independent lawyering would preclude allowing clients to dictate the positions they take. As the Model Rules state, mirrored in this respect by state codes around the country, “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.” This rule is not overridden by a client’s demand—even a president’s demand—that the lawyer contrive whatever he or she can to put sham legal dressing on a policy or political objective. The client may demand it, but the lawyer cannot ethically comply.
In this very atypical administration, two pressures converge to disable the rules’ grip on executive branch lawyering. Trump’s demand for personal loyalty is one such pressure. Frustrated by his experience with Trump 1.0 lawyers who failed him in this regard, he has stocked the senior ranks of his Department of Justice with former members of his personal legal team. He expects his agents in the ranks of government lawyers to conform their professional actions to his whims and preferences. For example, according to press accounts, the Department of Justice moved to end the appeals of the legally baseless executive orders, roundly rejected by every court that considered them, and Trump ordered that they be reinstituted. He reportedly demanded that the lawyers pursue these appeals lacking a basis in law or fact, and they complied.
Another of the pressures undermining the force of ethical rules in this government is its sweeping version of the “unitary executive” theory. On this view, lawyers who do not deliver the desired advice for ethical or any other reasons are blocking the president in the exercise of his constitutional responsibilities. This administration is not the first to have been concerned with the effect of bar rules on its supervision of government lawyers. But it is distinctive in abandoning any measured concern in favor of an apparently all-out expectation that its lawyers do as directed. More broadly, throughout the administration, lawyers are being fired or forced out, and others selected to replace them, to ensure the subordination of legal advice to presidential will.
In this atypical administration, therefore, the bar rules and their enforcement have come under severe stress. The lack of specificity about their application to government lawyers compounds the wider problem. Of course, even bar rules that are strengthened in this respect can be—and in this government, will be—willfully ignored. But it does not help matters that they do not always speak as clearly as they should to the expectations the profession and the public should have of lawyers serving in the government.
An example is the current D.C. Bar disciplinary proceeding pending against former interim U.S. Attorney and now DOJ pardon attorney, Ed Martin. Martin is a sterling example of a lawyer so deficient in both competence and ethical mooring that his nomination to be U.S. Attorney for the District of Columbia collapsed before a Congress normally subservient to the president in these matters, and Trump ultimately withdrew it.
The current bar proceeding focuses on his bizarre action, by letter to the Dean of Georgetown Law, to deny students access to a DOJ fellowship and other career opportunities unless the school stopped teaching “DEI.” He did not specify what he meant by the term, he did not explain in what way his objection related to his responsibilities as interim U.S. Attorney, and he did not provide for any process by which the law school could respond before the penalties he imposed on the students would take effect. He also then declined to respond to inquiries by the D.C. Bar and instead attempted to go around it with appeals to the chief judge and the senior judges of the D.C. Court of Appeals to negotiate with him directly and to fire bar counsel.
The D.C. Bar’s disciplinary counsel relied in major part on the First Amendment and Fifth Amendment issues implicated in his demands on Georgetown Law. Martin is charged with failure to honor his oath upon admission to the bar to “support the Constitution of the United States” under the relevant rule. And it is hard in this instance to doubt that this outlandish behavior is inconsistent with that oath. But it is notable that the rule in question provides for disciplinary action by the bar for misconduct involving “the attorney’s oath of office or the rules or code of professional conduct currently in effect in the District of Columbia” (emphasis added). It seems odd but also telling that the bar could not identify specific “rules . . . of professional conduct currently in effect” that apply to and prohibit this conduct.
In cases far less compelling than that of the ethically challenged Martin, reliance on the sworn oath is an open-ended, tricky source of ethical discipline. Consider in a future Democratic administration a complaint against lawyers involved in cases or executive actions on gun control who face the claim that they failed to honor their oath to uphold the Second Amendment guarantee of the right to bear arms. This approach can be played out in a variety of different directions.
There are rules that could be reasonably applied, and certainly new rules that could be potentially formulated, to cover cases like Martin’s and others arising from the representation of the government. I won’t argue them here. During the Biden administration, Jack and I urged the Department of Justice to adopt policies and internal ethical standards to “reaffirm and strengthen” norms of departmental independence from political pressures. We made specific proposals and there are many others that, in some future administration, could be fruitfully considered. The ethics rules could also be amended and supplemented to useful effect. But it has not happened.
The Bar Complaint Wars
Meanwhile, largely beginning with lawyer complicity in Trump’s challenge to the 2020 election, bar complaints have begun to fly. At least three organizations have the established mission of upholding ethical accountability in the legal profession and have sought bar disciplinary action against personal or government counsel to Trump. The count of such complaints is uncertain, but it exceeds 100. Still another organization, America First Legal, has joined the fray in defense of Trump, so far filing a bar complaint against New York State Attorney General Letitia James based on the Trump administration’s allegation that she committed mortgage fraud. As this flurry of bar complaints become something of a melee, America First Legal has filed a bar complaint against the director of the anti-Trump 65 Project “for abusing the attorney grievance process to seek misconduct sanctions against lawyers associated with President Trump.”
That the process is coming under strain in this polarizing, weaponizing political culture does not dictate the conclusion that attorney misconduct should go unaddressed. Among the various complaints filed are ones of genuine merit. But the disciplinary process is at risk of being overwhelmed. Already, as Professor Deborah Pearlstein recently pointed out, bar “proceedings can drag on for years,” and the bar struggles with questions of how to address the application of the ethics rules to high-ranking government officials, such as the attorney general.
Under current pressures, the disciplinary process is suffering a major problem, if not a crisis, of overload and weaponization, which can only serve to diminish its standing with a large segment of the bar and of the public. The sheer and growing volume of these complaints and the nature of their allegations are likely to engulf both the bar and the courts in polarizing disputes about motives and outcomes. To recognize these risks is not to excuse ethical misconduct or to dismiss the importance of the disciplinary process to address it. At the same time, the failure to recognize these risks does not serve the wider project of protecting the vital role of ethical rules and enforcement, and where possible, strengthening them.
The Trump administration is now able to exploit the intensifying conflicts to attack, as compromised by politics, the enforcement of ethics rules. The Department of Justice professes to leave the ethics rules in place as a substantive matter, but its proposed rules would enable the Department of Justice to take measures, while it “reviews” misconduct issues, to prevent the bar from “interfering” by conducting its own independent inquiry. The most weaponizing administration in presidential history is invoking weaponization to insulate its attorneys from meaningful and timely inquiry into ethical misconduct.
What’s Next?
It is far from clear where this controversy is headed, other than the same cycle of political conflict and retribution that has come to dominate politics in this era. But it would behoove the profession to step back and consider how to review and clearly define the ethical obligations that lawyers in the Department of Justice and throughout the government have. This debate needs to be abstracted to the extent possible from the intense contemporary conflicts or it will succumb to the same forces of polarization that necessitate this conversation in the first place. It should be a debate about first principles.
And the debate should focus on what is required to preserve the legal profession as a profession when its practitioners serve the public in government service. Lawyers are professionals insofar as they are trained to adhere to certain standards of practice and conduct. They are to answer for these standards to their clients, but also to the system for the administration of justice, including the courts. If far from perfectly, the ethics rules define the character of the professionalism to which lawyers must commit themselves, and which they must answer for.
Of course, at the same time, government lawyers support those officials selected through the democratic process to make and implement policy. How they can provide this support while remaining true to professional standards may be challenging, but the difference at issue in this challenge is the one between a lawyer and a hack.