As a retired attorney, I am following with increasing concern the many lawsuits filed against the Trump administration. I am astonished by the administration’s disregard for civil liberties, separation of powers, and indeed, the rule of law itself. The frequent unlawfulness of the process is bad enough, but the mean-spiritedness of the administration is inhuman. I think government lawyers bear much of the responsibility.
U.S. Department of Justice attorneys are making insincere and even disingenuous arguments in written briefs and oral arguments. I believe there would be fewer such instances if attorneys were more frequently disciplined for this conduct.
Pick a profession, and you will likely find an ingrained self-protection feature. But with lawyers, we are talking about members of the judiciary, one of three branches of government, whose ultimate charge is upholding the Constitution, both state and federal. This demands truth from counsel, commonly referred to as the duty of candor, and every bar association has rules requiring candor.
In simple terms, this means lawyers are bound by good faith and may not make statements or arguments they know, or should know, are false or misleading, or that are unsupported by evidence, statute or applicable case law. In the current administration, DOJ attorneys too often breach standards with little or no consequence.
In some of the cases pending against the Trump administration, DOJ attorneys are offering disingenuous theories that reflect a lack of candor. One example is the birthright citizenship case. A senior District Court judge in Seattle, John Coughenour, found the Executive Order attempting to end such citizenship to be “blatantly unconstitutional” and said it “boggles my mind” that “a member of the bar could state unequivocally that this is a constitutional order.”
Another is the case of alleged gang member and trafficker Kilmar Abrego Garcia, in which District Court Judge Paula Xinis berated DOJ attorneys for “continued mischaracterization” of the U.S. Supreme Court order requiring the government to facilitate Abrego Garcia’s return from an El Salvador prison.
Much of lawyer discipline these days arises from the discovery that legal briefs were prepared by artificial intelligence, which is now so sophisticated that it will invent fake case citations in support of briefs purportedly written by the attorneys submitting them. When discovered, the fake citations are such obvious ethical lapses that courts have little trouble finding a breach of the duty of candor and imposing sanctions on the offending lawyer (often fines).
But lawyer discipline is not always that easy, particularly in cases where novel theories — the lawyer’s stock-in-trade — are presented. It is important to remember that Brown v. Board of Education (1954) offered a novel theory that overturned Plessy v. Ferguson (1896), which had established the “separate but equal” doctrine that we now think of as racist — which it was. But life, and the law, is not always that clear, even in retrospect.
There is a clear and present danger to our democracy as the executive branch pursues, and the Supreme Court often endorses, presidential control of many facets of both government and the private sector. There is also much talk these days about the sanctity of the rule of law, but the rule of law is dependent on truthfulness from our legal profession, and I hope our courts and bar associations will transparently support the rule of law by more aggressively seeking discipline for attorneys offering specious arguments.
Disciplining, even disbarring, attorneys who breach their duty of candor is essential to our democracy, especially now in the face of an attempted power grab by the executive branch of government that would subordinate the legislative and judicial branches. But it’s not just the attorneys who have a duty of candor. Our courts and bar associations also have a duty of candor — to the American public and to our democracy.
