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

Thu, Jun 2nd 2016 8:38am — Tim Cushing

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.

DOJ-TEXAS-20160531 (PDF)DOJ-TEXAS-20160531 (Text)

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Filed Under: andrew hanen, doj, ethics, lying

65 Comments

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David, 2 Jun 2016 @ 8:50am

Good faith, good faith,
I can't hear it anymore.
The DOJ claims its misrepresentations were not of the "bad faith" variety,

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.
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DigDug, 2 Jun 2016 @ 8:50am

Sounds like contempt of court and jail-time to me.
The judge should now find all of them in contempt of court and sent to prison until such time as they've taken the training and passed 3rd party testing to confirm that the ethics reprogramming has taken hold.

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.
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Huw, 2 Jun 2016 @ 8:51am

I think the DOJ have something of a point.

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?
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Nathan F (profile), 2 Jun 2016 @ 8:52am

So.. can the Judge simply not allow any lawyer who didn't go through the required ethics training the privilege of practicing law in his courtroom? Sounds like Contempt of Court to me.. how long are they going to have to spend in jail before they comply?
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JonC (profile), 2 Jun 2016 @ 8:58am

I suppose being forced to learn ethics would constitute irreparable harm for DOJ lawyers. I don't think they could do their jobs for the Department of Prosecutions and Convictions, I mean Department of Justice, if they developed ethics (and, God forbid, morals or a conscience).
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Anonymous Anonymous Coward (profile), 2 Jun 2016 @ 9:00am

Plausible Deniability
As somebody mentioned the last time this was discussed (kudos and thank you), there is a difference between knowing what is ethical and acting ethically. This story tells me that the DOJ is looking for plausible deniability with regard to ethics. They cannot be accused of not acting ethically if they can make the claim that they don't know what that is.
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JonC (profile), 2 Jun 2016 @ 9:04am

"...impermissibly encroach on the Attorney General’s authority to supervise the conduct of litigation involving the United States..."

So is their point that the Attorney General needs to attend ethics classes?
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Vidiot (profile), 2 Jun 2016 @ 9:06am

Stop the presses, Merriam-Webster
"Due to the Government’s wrongful misstatements..."

There it is... this month's candidate for new government-speak of the year:

Good ol'-fashioned lying is now Wrongful Misstatements.
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Anonymous Coward, 2 Jun 2016 @ 9:11am

...not of the "bad faith" variety...
More of the same from the people who brought us "parallel construction."
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sophisticatedjanedoe (profile), 2 Jun 2016 @ 9:14am

I'm with DOJ here, but for a different reason: a judge can't order DOJ lawyers to attend ethics classes as a judge can't order me to attend ballet classes. It would be a total waste of time with no meaningful results.
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Anonymous Coward, 2 Jun 2016 @ 9:17am

Re: Sounds like contempt of court and jail-time to me.
The judge should now find all of them in contempt of court and sent to prison until such time as they've taken the training and passed 3rd party testing to confirm that the ethics reprogramming has taken hold.

Since when did passing a test confirm that a person will putt into practice what they have learnt?
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Anonymous Coward, 2 Jun 2016 @ 9:20am

The DOJ claims the DOJ does nothing wrong.
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Anonymous Coward, 2 Jun 2016 @ 9:24am

Training Cost
It is very hypocritical for the DOJ to dictate to places like Ferguson that they need to implement new training that costs in the millions of dollars annually, but at the same time, it cannot do it within the DOJ's budget which is in the tens of billions.
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Anonymous Coward, 2 Jun 2016 @ 9:27am

Re:
Could a judge order you to take anger management classes or traffic school?

another sophisticatedjanedoe hipshot
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Anonymous Coward, 2 Jun 2016 @ 9:29am

Re: 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?

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.
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David, 2 Jun 2016 @ 9:33am

Re:
Yeah. Sounds like mandatory hit-the-can schlong-handling training for women. Grossly insulting, inappropriate and discriminatory.

I mean, ethics for DOJ lawyers? What's next? Modesty for prostitutes? Honesty for politicians? Modesty for managers? Humility for Trump?
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David, 2 Jun 2016 @ 9:40am

Re: Re:
Ah, sugar beets. Obviously I meant chastity for prostitutes.
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Jnite (profile), 2 Jun 2016 @ 9:41am

Imitation
"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 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.
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David, 2 Jun 2016 @ 9:46am

Re: Training Cost
It's not just the cost of ethics trainers. You'll need a large traveling budget, interpreters, and translators for the course materials.
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Tmc, 2 Jun 2016 @ 9:57am

Can't the judiciary just decline to accept filings or arguments from the specific lawyers in question?
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Anonymous Coward, 2 Jun 2016 @ 10:05am

Re: Sounds like contempt of court and jail-time 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."

Let's get right on that congress, m'kay?
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Robert Beckman (profile), 2 Jun 2016 @ 10:06am

Criminal Contempt of Court
This sounds familiar to me. Attorney behave poorly in court, often lying to the judge and other litigants, then get slapped firmly for their actions and complain that the right process wasn't followed when the possible sanctions were potentially much stronger.

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?"
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Anonymous Coward, 2 Jun 2016 @ 10:08am

Re: Re:
me thinks you missed the sarcasm
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Anonymous Coward, 2 Jun 2016 @ 10:09am

no accountability at all that must put great faith in those that support dictatorships and tyrannies
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Mason Wheeler (profile), 2 Jun 2016 @ 10:11am

Re: Good faith, good faith,
Wow, Godwin'd on the very first comment...
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Anonymous Coward, 2 Jun 2016 @ 10:23am

Re: Sounds like contempt of court and jail-time to me.
not a chance in hell. This a was a wrist slap judgement for people that should have been charged with perjury. Why on earth would the judge have a spine and actually follow up with any real consequences when they told him they refuse to be held accountable even for this
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Anonymous Coward, 2 Jun 2016 @ 10:27am

Re:
Yet they can order people for re education or they go to jail.

Quite simply refusing a court order is grounds for prison time. save for those that are treated as above the laws.
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Anonymous Coward, 2 Jun 2016 @ 10:29am

Re: Sounds like contempt of court and jail-time to me.
What's he going to do, order them to go arrest themselves?
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Quiet Lurcker, 2 Jun 2016 @ 10:33am

Re:
Yeah, except for a couple points.

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.
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Anonymous Coward, 2 Jun 2016 @ 10:38am

Re:
After all, while the cost of teaching ethics to lawyers is quite high.

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.
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Eponymous Coward, 2 Jun 2016 @ 10:56am

" it claims the court has no power to order its legal staff to attend ethics classes… or to do anything, apparently"

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.
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sman88, 2 Jun 2016 @ 11:06am

The DOJ is right. They should not have to take those ethics classes. They all need to be fired!!!!!!
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David, 2 Jun 2016 @ 11:13am

Re: Stop the presses, Merriam-Webster
"wrongful" is not in government vocabulary. We are talking about good-faith statements with headroom for further increase of veracity.
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David, 2 Jun 2016 @ 11:17am

Re:
Against their current job.
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Uriel-238 (profile), 2 Jun 2016 @ 11:24am

Now that the handslap was vetoed...
Can we move forward with disbarment and jail terms?
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LVDave (profile), 2 Jun 2016 @ 11:34am

Re:
Big difference between a judge ordering *you* to take ballet lessons and a judge ordering a lawyer to take ethics training.. The lawyer, as an officer of the court, has to follow what the judge of *that* court tells him to do, otherwise its contempt of court.. You on the other hand, unless you're in front of said judge being tried for some misdeed, you're not required to follow his instructions. Hell, I'm not even a flippin' lawyer and I know this..
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LVDave (profile), 2 Jun 2016 @ 11:38am

Re:
Obviously the DOJ is full of shit.. Oh wait.. We already *knew* that... Minor correction: its now the "Department of INJustice"...
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Anonymous Coward, 2 Jun 2016 @ 12:05pm

One is curious why the judge doesn't recommend the lawyers face perjury charges, as would any other citizen.
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Docrailgun, 2 Jun 2016 @ 12:27pm

Ethics training...
...is not what the appeal is about. Thus judge also wants the DOJ to provide private information about any and all potentially illegal immigrants so thst he can dox them.
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That One Guy (profile), 2 Jun 2016 @ 12:57pm

The bluff has been called
This result isn't the slightest bit surprising really, it's been clear for a good while now that pretty much all of the various government agencies believe that they are completely and utterly above the laws and rules, and only have to follow the ones that they feel like.

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.
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Anonymous Coward, 2 Jun 2016 @ 1:06pm

We are at the point that DOJ has no interest in following the laws it is supposed to uphold when it is inconvenient to them. It's no longer just DOJ but has slowly filtered up to them from other agencies. Face it this is not just a DOJ problem; rather whole branches of the government are intentionally ignoring the law when the purposes suit it.

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.
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Anonymous Coward, 2 Jun 2016 @ 1:49pm

Re: Re: Training Cost
If you look at the old stories about the Ferguson having second thoughts about accepting the DOJ's required changes, it was because the training costs would be overwhelming to undertake for a small city budget. The DOJ basically tough luck. In this motion, they are saying well, it is costly to have the required training so we shouldn't have it. This is one aspect that I am saying is hypocritical. Whether it costs them $1 for training costs, the DOJ doesn't want to do the training, but will impose it on everyone else.
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Anonymous Coward, 2 Jun 2016 @ 1:55pm

Can't order a lawyer to attend an ethics class because he'd lie and say he was ill....
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Anonymous Coward, 2 Jun 2016 @ 2:07pm

Wouldnt a lawyer in ethics class be counterproductive?
Wouldn't sending a lawyer to ethics class be like trying to treat a sociopath? They would learn only how to be a better sociopath/lawyer and not change their ways at all.
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Anonymous Coward, 2 Jun 2016 @ 2:10pm

Re: Sounds like contempt of court and jail-time to me.
DoD personnel are required to take this training already.
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Anonymous Coward, 2 Jun 2016 @ 2:13pm

Re: ...not of the "bad faith" variety...
I think the word you are looking for is evidence laundering.
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Anonymous Coward, 2 Jun 2016 @ 2:33pm

If the judge doesn't have the authority, then it does have the authority to file a complaint with the state bar, and start disbarment proceedings against every attorney working for it. I would imagine that the DOJ and its attorneys would rather attend ethics classes for conduct then see every single one of its attorneys brought up before the state bar with the chance of losing their license to practice law.
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That One Guy (profile), 2 Jun 2016 @ 3:23pm

Re: Plausible Deniability
Oh I dunno, I'm pretty sure that class or not it would still be believable that not a single person working in the DOJ knows what 'ethics', 'rules' or 'limits' are.
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Anonymous Coward, 2 Jun 2016 @ 3:30pm

Just like racehorses, just look at the name.
Speedy = slow, cant run = fast, dept of justice = criminals.
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crade (profile), 2 Jun 2016 @ 3:30pm

Re: Re: Re: Sounds like contempt of court and jail-time to me.
Don't be ridiculous, they had to take classes to become a lawyer to begin with. They are already certified to know that defrauding the court is wrong.

Unfortunately, they also know no one is going to do anything about it.
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Anonymous Coward, 2 Jun 2016 @ 3:43pm

Hanen is a well-known anti-immigration judge.

http://www.newyorker.com/news/john-cassidy/immigration-gop-wont-take-you-win-for-answer
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Uriel-238 (profile), 2 Jun 2016 @ 3:54pm

Sociopaths
Sociopaths are not like they are in the movies where there's nothing for them but to have Bruce Willis shoot them in the face.

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.
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afn29129 (profile), 2 Jun 2016 @ 4:14pm

Nyah nyah NhAY, can't make us.
So what this acutely is is the DOJ telling the judge 'We'll do what we wanna do and there's nothing you can do about it. Nhay nyah nyah'
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Anonymous Coward, 2 Jun 2016 @ 8:11pm

Every day America goes 1 step closer to armed revolt in a repetition of history to free themselves from a corrupt and tyrannical ruling class.
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Anonymous Coward, 2 Jun 2016 @ 8:13pm

Re:
arrested, thrown in jail for breaking basic laws should be the initial step here. anything less is a travesty of justice
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Anonymous Coward, 2 Jun 2016 @ 8:20pm

Re:
when governments start acting like the laws do not apply to them that is when they need to be overthrown.
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Anonymous Coward, 2 Jun 2016 @ 8:21pm

Re:
Looks more like he is against illegal immigrants than against immigrants in general.
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David, 2 Jun 2016 @ 10:34pm

Re: Re: Sounds like contempt of court and jail-time to me.
In-house training has a different focus. It's like in-house medical training for torturers to make sure their subjects stay alive as long as possible. It's more like what-can-I-get-away-with training rather than what-would-be-the-ethical-thing-to-do.

And the judge saw the results. That's why he wants outside and independent ethics classes in the first place.
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Anonymous Coward, 3 Jun 2016 @ 2:47am

So this is how you get disbarred. To be a fly on the wall at that hearing.
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Anonymous Coward, 3 Jun 2016 @ 6:02am

Re: So this is how you get disbarred.
Great point.

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.
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Anonymous Coward, 3 Jun 2016 @ 6:34am

Re: Re: Re:
Still missing it.
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Dirkmaster (profile), 3 Jun 2016 @ 9:14am

Re: Good faith, good faith,
This, a thousand times this.

Good faith, bad faith, it's all subjective and bullshit. I don't care a fig for it.
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Ninja (profile), 3 Jun 2016 @ 9:16am

Re: Re: Re: Re: Sounds like contempt of court and jail-time to me.
That. And the fact that even basic ethics classes are being fought tooth and nail says a lot about how much punishment is waiting for those that do it again. The executive is out of control.
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Bergman (profile), 3 Jun 2016 @ 3:43pm

Re: Re: Good faith, good faith,
Godwin's Law says nothing about the validity of an argument.

It merely states the probability of Hitler being mentioned.
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Anonymous Coward, 3 Jun 2016 @ 7:59pm

Re: Re:
Could a judge order you to take anger management classes or traffic school?

Not if you're a DOJ lawyer.
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