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.



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Comments on “DOJ Says Judge Can't Order Its Lying Lawyers To Attend Ethics Classes”

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65 Comments
Davidsays:

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.

DigDugsays:

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.

Anonymoussays:

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?

Anonymoussays:

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.

Anonymoussays:

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

Davidsays:

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.

Anonymous Anonymous Cowardsays:

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.

Quiet Lurckersays:

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.

LVDavesays:

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..

Anonymoussays:

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.

Jnitesays:

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.

Robert Beckmansays:

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?”

That One Guysays:

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.

Anonymoussays:

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.

Uriel-238says:

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.

Anonymoussays:

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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