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Moral Blindness and the Fall of the American Empire

Do DOJ Lawyers Need an Ethics Class?

Judge Hanen Orders a Halt to Implementation of DACA and DAPA

Perhaps you have heard that U.S. District Judge Andrew Hanen issued an opinion five days ago that found that Department of Justice (DOJ) lawyers not only lied to him and opposing counsel but “it is hard to imagine a more serious, more calculated plan of unethical conduct.” What is even remarkable however is that, after finding such calculated and unethical conduct, Hanen ordered the lawyers to simply take ethics classes rather than refer them to the bar for suspension or disbarment. Notably, the DOJ is opposing ethical classes as a sanction.

Judge Hanen found that the DOJ misled him and opposing counsel in a case by Texas and 25 other states that sought to block President Barack Obama’s controversial immigration programs the Deferred Action for Childhood Arrivals or DACA and the policy implementing it, the Deferred Action for Parental Accountability -- DAPA. On February 23, 2015 Hanen issued a temporary injunction blocking both programs from going into effect. Current requirements would remain unchanged and DAPA would not be implemented.

In should be noted that Hanen’s decision was upheld twice by the U.S. 5th Circuit Court of Appeals. The case was argued last month before the U.S. Supreme Court, which is expected to issue a decision next month.

States’ Lawsuit against the U.S. Government

The case in point is an appeal of President Obama’s executive actions affecting DACA. On November 20, 2014, the President announced a new deferred action policy following up on DACA. Like DACA, the DAPA status itself and the accompanying work authorizations was intended to be granted for a period of three years with the opportunity to renew before three years have elapsed. The DAPA policy would have allowed an estimated 5 million undocumented immigrants to apply for a work permit and a reprieve from deportation.

The main grounds for the lawsuit brought by the states were the costs of issuing driver’s licenses and other associated costs of giving the undocumented immigrants legal status. Other issues included exceeding executive power, failure to adhere to rulemaking procedures, and standing — the right of the states to challenge federal immigration policies.

The Obama administration has argued that Texas does not have standing to sue the government and that executive action isn’t granting undocumented immigrants a free pass. The administration says the president is telling immigration agents to use their limited resources to deport criminals and felons, while simultaneously allowing immigrants deemed low priority to work and stay with their families.

Misleading Statements by DOJ Lawyers

Hanen said his sanctions stem from the administration’s attorneys purposely misleading his court about when the government would begin accepting applications for the program, and how many immigrants were mistakenly awarded work permits before the program was slated to start.

 “The Government knowingly acted contrary to its representations to this Court on over 100,000 occasions,” Hanen wrote. “This Court finds that the misrepresentations detailed above: (1) were false; (2) were made in bad faith; and (3) misled both the Court and the Plaintiff States.

The DOJ has since admitted that the Department of Homeland Security (DHS) violated Judge Hanen’s injunction. Specifically, it filed an Advisory on March 3 informing Hanen that, despite having assured him in open court and in written pleadings to the contrary, between when the President announced his Executive Action on November 20, 2014, the DHS had begun implementing part of the President’s plan – issuing 108,000 three-year work permits to DACA applicants.

Judge Hanen blasted DOJ officials for misleading the court. He said the Obama administration launched its executive amnesty program behind the court’s back, lied about it, and granted lawful residence to more than 100,000 illegal immigrants. He ordered the DOJ to provide lists of each affected illegal alien in each of the states, requiring each DOJ attorney to take additional legal ethics courses for a period of five years, and ordered Attorney General Loretta Lynch to produce a comprehensive plan for ensuring that similar misconduct would not happen in the future. The court did not have the power to disbar the individual lawyers who lied to the court, but it did revoke their permission to appear in the case.

Ethical Issues

The basic question is why didn’t Judge Hanen take the more conventional action and refer the lawyers’ conduct to the Bar Association? Perhaps he felt the shaming of being sent to an ethics class would send the signal that he was serious about the offense while referrals might not lead to any punishment by the Bar Association. Hanen also declined to issue monetary sanctions, saying that taxpayers shouldn’t be burdened with footing the bill for the government’s mistakes.

“The Court would be imposing more costs on the aggrieved parties, and the Justice Department, which is actually responsible for this mess, would go unscathed,” he wrote. “There would be no corrective effect and no motivation for the Government’s lawyers to act more appropriately in the future.”

Misleading behavior is at the core of Judge Hanen’s ruling. The key here is a breakdown of trust in Hanen’s court room and the belief that it is part of a pattern of behavior by DOJ lawyers that smacks of unethical behavior. I agree with the Judge’s ruling and emphasize that trust is the basis for our judicial system. From a Kantian Rights perspective, what would happen if all lawyers lied or deceived in the courtroom (perhaps most already do)? The loss of trust between judges and attorneys would reverberate throughout the legal system.

However, sending DOJ lawyers to ethics classes is a bit like sending a driver with multiple speeding tickets to a defensive driver training program. Neither of them works. Oh sure the driver may be on his or her best behavior for a short time but slowly bad habits creep back in and the driver reverts to speeding, missing stop signs, and distracted driving. The DOJ lawyers will be on their best behavior but old habits die hard including lying when it suits them and furthers their cause. Thus I conclude that the term “legal ethics” is an oxymoron.

Blog posted by Steven Mintz on May 24, 2016. Dr. Mintz is a professor in the Orfalea College of Business at Cal Poly San Luis Obispo. He also blogs at www.workplaceethicsadvice.com.