DOJ Says Judge Can't Order Its Lying Lawyers To Attend Ethics Classes
from the or-do-anything-to-punish-it-for-its-unethical-behavior,-apparently dept
Federal judge Andrew Hanen recently benchslapped the DOJ for lying about the central element in an ongoing lawsuit between twenty-six states and the US government over changes to immigration policies. The strongly-worded order (which, despite its accusations, never once used the word "lie") chastised DOJ lawyers for hiding information about the processing of certain immigrants -- something that happened over 100,000 times even as (a) the DOJ said no such processing would take place until February 2015, and (b) the states had obtained a temporary restraining order against this processing until the courts could sort it out.
The Court issued the temporary injunction on February 16, 2015. The timing of this ruling was clearly made based upon the representations that no action would be taken by Defendants until February 18, 2015. If Plaintiffs’ counsel had known that the Government was surreptitiously acting, the Plaintiff States could have, and would have according to their representations, sought a temporary restraining order pursuant to Federal Rule of Civil Procedure 65(b) much earlier in the process. [...] Due to the Government’s wrongful misstatements, the Plaintiff States never got that opportunity. The misrepresentations of the Government’s attorneys were material and directly caused the Plaintiff States to forgo a valuable legal right to seek more immediate relief.
Judge Hanen had limited weaponry at his disposal to punish the DOJ for its lies. The case was awaiting a Supreme Court review and Hanen's work was pretty much done. All he could do was issue an order demanding the DOJ work on its broken ethics. Hanen ordered all DOJ lawyers who might appear in court to attend mandatory ethics training and documentation confirming attendance passed on to him. This order had the potential to affect the DOJ's entire staff of lawyers, seeing as it was fighting a legal battle on 26 fronts.
The DOJ has responded to this order. It's not happy Judge Hanen has ordered it to clean up its own house. In its response [PDF], it claims the court has no power to order its legal staff to attend ethics classes… or to do anything, apparently. (via the Volokh Conspiracy)
The sanctions ordered by the Court far exceed the bounds of appropriate remedies for what this Court concluded were intentional misrepresentations, a conclusion that was reached without proper procedural protections and that lacks sufficient evidentiary support. Compounding matters, the sanctions imposed by this Court exceed the scope of its authority and unjustifiably impose irreparable injury on the Department of Justice, the Department of Homeland Security (DHS), and thousands of innocent third parties.
It's actually a two-prong argument -- one that the DOJ will be taking to the Appeals Court. One: the court can't issue this sort of order. Two: the DOJ did nothing wrong.
[T]he Government is likely to prevail on appeal, because (1) the Court’s finding of bad-faith misrepresentations is not supported by the evidence, and certainly not by clear and convincing evidence, as required; (2) the Court imposed sanctions without observing required procedural protections; and (3) the sanctions imposed place onerous administrative obligations on DHS that are unjustified by any demonstrated remedial purpose; impermissibly encroach on the Attorney General’s authority to supervise the conduct of litigation involving the United States; and improperly seek to regulate the conduct of and standards for appearance by Department of Justice attorneys before other state and federal courts in twenty-six States.
The DOJ believes that if it did do something wrong, it's up to the DOJ to decide how it's handled, or if it even should be addressed at all. The DOJ also shows a sudden (and very temporary) concern for the poor taxpayers.
The expenditures of money and manpower that the order requires of the Department of Justice are also significant. The estimated cost to the Department (and in turn, to the American taxpayer) in terms of direct expenditures and lost productivity would be between approximately $1 million and $1.5 million this year alone. See Lofthus Decl. ¶ 10. The costs over five years could total nearly $8 million. See id.; see also id. ¶¶ 11-20. These losses of taxpayer funds and productivity can never be recouped.
This is the DOJ complaining about rerouting less than $2 million of its $25-30 billion budget, which is like complaining about being told how to spend 8 cents of a $1000 windfall.
Nowhere in its response does the DOJ suggest what might be an appropriate remedy. Certainly, it's not obligated to provide the courts with suggestions for sanctions, but its filing implies the courts are simply supposed to let widespread "misrepresentation" go unpunished, if not unnoticed. The DOJ can police itself, its lawyers assert, while providing no examples of how it has done so in the past.
The DOJ claims its misrepresentations were not of the "bad faith" variety, suggesting the court should do little more than tell it to do better next time. But it's difficult to see how telling plaintiffs and the court that no immigrants were being processed under guidelines central to litigation involving 26 states is the same thing -- or nearly the same thing -- as having knowledge that 100,000 immigrants had already been processed prior to the restraining order's issuance.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: andrew hanen, doj, ethics, lying
Reader Comments
Subscribe: RSS
View by: Time | Thread
Good faith, good faith,
The goto defense of every police misconduct. The excuse for religious fanatists and terrorists, the Klan and Hitler. Everybody acting in the best interests and good faith for the people.
Keep the faith out of politics and law enforcement. Right is right, wrong is wrong. The ends don't justify the means.
[ link to this | view in chronology ]
Re: Good faith, good faith,
[ link to this | view in chronology ]
Re: Re: Good faith, good faith,
It merely states the probability of Hitler being mentioned.
[ link to this | view in chronology ]
Re: Good faith, good faith,
Good faith, bad faith, it's all subjective and bullshit. I don't care a fig for it.
[ link to this | view in chronology ]
Sounds like contempt of court and jail-time to me.
They can sit and rot in jail until they can prove to the judge that their ethics are in working order.
This plan sounds like a win-win-win for the country to me...
In fact, I think every elected, assigned, hired government official / employee should be required to take ethics training annually, preferably with mind-conditioning drugs to force them into ethical conduct.
Imagine our Government without corruption, where no bribe is accepted, where no business to lobbyist to politician to business revolving door exists, where laws are enforced by the intent more than the letter, and laws that harm the public are revoked.
The more I ponder on this, the more I like the idea.
[ link to this | view in chronology ]
Re: Sounds like contempt of court and jail-time to me.
Since when did passing a test confirm that a person will putt into practice what they have learnt?
[ link to this | view in chronology ]
Re: Re: Sounds like contempt of court and jail-time to me.
It doesn't -- but it shows that they're aware of what they are supposed to be doing. So if they ignore the ethics again in the future... that's immediate contempt of court and potential jailtime. They don't get to plead "good faith" after they've passed the training.
[ link to this | view in chronology ]
Re: Re: Re: Sounds like contempt of court and jail-time to me.
Unfortunately, they also know no one is going to do anything about it.
[ link to this | view in chronology ]
Re: Re: Re: Re: Sounds like contempt of court and jail-time to me.
[ link to this | view in chronology ]
Re: Sounds like contempt of court and jail-time to me.
Let's get right on that congress, m'kay?
[ link to this | view in chronology ]
Re: Sounds like contempt of court and jail-time to me.
[ link to this | view in chronology ]
Re: Sounds like contempt of court and jail-time to me.
[ link to this | view in chronology ]
Re: Sounds like contempt of court and jail-time to me.
[ link to this | view in chronology ]
Re: Re: Sounds like contempt of court and jail-time to me.
And the judge saw the results. That's why he wants outside and independent ethics classes in the first place.
[ link to this | view in chronology ]
After all, while the cost of teaching ethics to lawyers is quite high. Imagine the cost of teaching ethics to individuals who may have no ethical abilities at all?
And who can say how many of those work for the DOJ?
[ link to this | view in chronology ]
Re:
I mean, ethics for DOJ lawyers? What's next? Modesty for prostitutes? Honesty for politicians? Modesty for managers? Humility for Trump?
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re:
I once worked on a military project where we taught monkeys to fly (i.e. to pilot aircraft). Although that was difficult, I imagine it was a breeze compared to teaching ethics to DOJ lawyers.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Plausible Deniability
[ link to this | view in chronology ]
Re: Plausible Deniability
[ link to this | view in chronology ]
So is their point that the Attorney General needs to attend ethics classes?
[ link to this | view in chronology ]
Stop the presses, Merriam-Webster
There it is... this month's candidate for new government-speak of the year:
Good ol'-fashioned lying is now Wrongful Misstatements.
[ link to this | view in chronology ]
Re: Stop the presses, Merriam-Webster
[ link to this | view in chronology ]
...not of the "bad faith" variety...
[ link to this | view in chronology ]
Re: ...not of the "bad faith" variety...
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
another sophisticatedjanedoe hipshot
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re:
Not if you're a DOJ lawyer.
[ link to this | view in chronology ]
Re:
Quite simply refusing a court order is grounds for prison time. save for those that are treated as above the laws.
[ link to this | view in chronology ]
Re:
First, the DOJ's lies were enough to convince the court to make a ruling which did Bad Things to the plaintiffs' case. I'm not a lawyer, and even I could tell you that one, just reading the ruling.
Second, lawyers aren't supposed to lie to the courts. That's not just a a Good Idea, it's The Law. Literally.
In this instance, the two facts taken together meant the judge had to take official notice. He couldn't change his ruling; it's since become a moot point and it's in front of another court. He couldn't refer to the prosecutor (lying to the court is actually a crime in and of itself; the effects the lies had on the case make it doubly so); it would be a conflict of interest. So what other option, than to order ethics training and hope it sticks this time.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Training Cost
[ link to this | view in chronology ]
Re: Training Cost
[ link to this | view in chronology ]
Re: Re: Training Cost
[ link to this | view in chronology ]
Imitation
The police believes that if they did do something wrong, it's up to the police to decide how it's handled, or if it even should be addressed at all.
The DOJ are just trying to imitate the absurdity that is already allowed. Maybe the DOJ lawyers will get a paid vacat- I mean suspension.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Criminal Contempt of Court
Where have I heard this before?
https://www.techdirt.com/articles/20150504/23101630888/team-prenda-has-very-bad-day-court-you -can-watch-it-all.shtml
And the money shot:
"Let's say you're right," said Pregerson. "Do you want us to send this back and have this turn into a criminal contempt proceeding?"
"Absolutely, your honor," said Voelker. "My clients want their day in court, with procedural protections."
The judges were taken aback at that remark.
"With a potential penalty of life in prison for criminal contempt?" asked Tallman. "They're prepared to run that gauntlet?"
[ link to this | view in chronology ]
[ link to this | view in chronology ]
So, a judge can order someone to spend the rest of their life locked in a cage but can't order lawyers to undergo job training... for their current job.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Now that the handslap was vetoed...
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Ethics training...
[ link to this | view in chronology ]
The bluff has been called
The judge can say whatever they want, but unless they want to risk exposing the fact that they can't actually do anything to an agency that defies their order if it comes down to it, I imagine they'll back down and try to save face with a joke of a wrist-slap(which this already was), and the agency will go along to perpetuate the lie that they care one bit what the legal system has to say.
[ link to this | view in chronology ]
DOJ is not fulfilling it's obligations to the court, seeming to feel it is above the law by what it picks and chooses to enforce or ignore as well as believing it is above the local or federal judge to rule over it.
There is an easier way to deal with the problem of ethics in court and is already set up. If the DOJ feels the costs of teaching ethics, which practicing barristers should already have grasp of through both the required legal classes to become a lawyer as well as required in the bar exam, then there is always the option of holding them responsible and sending them to the bar for examination of if they should continue to be a practicing and licensed lawyer due to their lapse of ethical court room behavior as an officer of the court.
I suspect DOJ would have a much more difficult time arguing that one since the lawyers in question were in fact in the court to peruse the government's case and therefore under the judge's authority.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Wouldnt a lawyer in ethics class be counterproductive?
[ link to this | view in chronology ]
Sociopaths
Sociopathy (nowadays Antisocial Personality Disorder) is typically treatable and most people with APD go through their lives without being criminal. To them, being a better sociopath is about being able to function in a society where people typically are susceptible to (and even rely on) guilt or empathy or compassion. Just because they are incapable of processing these things the way normal people only means they have to better understand how they are blind, and be actively aware how to behave in ways that are socially acceptable.
Frankly, sociopaths aren't as crazy as it seems, not just because they can't empathize, but because normal humans aren't very good about giving a fuck about anyone outside their first fifty Facebook friends (FFFF). We're completely capable of atrocity so long as it's people we don't care about, e.g. people in the next community or of another religion or skin color. Considering how the United States tortures, drone strikes, convicts people to prison on lies and false evidence and monitors people like zoo animals, all managed and conducted by people who are undiagnosed with APD, I'd argue that the same kind of treatment we use for our sociopaths may be appropriately applied to all of us.
But that's not an administrative ruling I'm in authority to make.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Just like racehorses, just look at the name.
[ link to this | view in chronology ]
http://www.newyorker.com/news/john-cassidy/immigration-gop-wont-take-you-win-for-answer
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Nyah nyah NhAY, can't make us.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re: So this is how you get disbarred.
I presume the judge would have to refer out to the respective state BARs and demand a review. I imagine this does happen from time to time, so it should be of no surprise to anyone. I'd be interested in any details anyone has on how this works.
[ link to this | view in chronology ]