A Cautionary Tale Of The Limited Reach Of Legal Ethics
Lawyers are very good at making up reasons why their clients are right, regardless of the nature of the dispute. And they’re very good at explaining why applicable laws and cases do or don’t apply, whichever serves the client’s interests. In this post I look at the ethical requirement related to purely legal arguments.
Rules
All lawyers are bound by the ethical obligations set by the state in which they are licensed. Generally these are a version of the ABA Model Rules Of Professional Conduct. Here’s the text of Rule 3.1:
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
In civil cases lawyers are bound by FRCP 11, which requires the signature of an attorney to every paper filed in court. Here’s the relevant part:
(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; ….
Government lawyers have greater ethical obligations in both criminal and civil cases. Here’s the first part of Comment 7 to Rule 8.4:
[7] Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers. ,..
As you can see, a violation of FRCP 11 is almost certainly a violation of Rule 3.1. Every state has a disciplinary authority empowered to enforce the rules of conduct. Lawyers have a duty to report known violations of the rules to the relevant authority. Rule 8.3.
Example: Birthright Citizenship
There are two cases on birthright citizenship, one in Massachusetts, discussed here and one in Seattle, discussed here. These cases are based solely on the Constitution; there are no disputed facts. This post focuses on the latter
Here’s an exchange between Judge Coughenour and Brett Shumate, a lawyer for the DoJ in the Seattle case:
“In your opinion is this executive order constitutional?” he asked.
Said Shumate, “It absolutely is.”
“Frankly, I have difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order,” Coughenour said. “It just boggles my mind.”
I would have said “the position of the government is that the EO is constitutional.” If pushed, I would repeat whatever is in the brief. This was the tactic used by Antoinette Bacon and Edward Sullivan in their motion to dismiss the Eric Adams prosecution, and from my experience, it’s common for government lawyers to do things like this. But Shumate is all in on this Trump EO.
Shumate’s brief includes a number of procedural arguments about standing and similar matters which I won’t discuss.
Discussion of the merits begins on page 11. The first argument is about the term “jurisdiction” used in the 14th Amendment. The District Courts in both cases reject this argument based on Wong Kim Ark and the ordinary meaning of jurisdiction. Any person in the US is subject to the jurisdiction of the US, regardless of how or why they’re here with exceptions for diplomats. For example, if you go to Paris, don’t take weed even if it’s legal in your state. It isn’t legal in France, and if the gendarmes catch you you’ll learn about jurisdiction.
The leading case is Wong Ark Kim v. US, (1898) Wong was the son of Chinese citizens. They were living in the US when he was born, but went back to China without him 17 years later. He went to visit them and returned without incident. On his second visit he was barred from entry and filed this habeas corpus petition. The decision is long and complex, delving into the history of citizenship by birth and citing cases I doubt were in my law school library. It seems to me that the central holding is this:
But the opening words, ‘All persons born,’ are general, not to say universal, restricted only by place and jurisdiction, and not by color or race, as was clearly recognized in all the opinions delivered in the Slaughter House Cases, above cited.
Unfortunately the question presented to the Court included statements about the domicile and residence of Wong’s parents, and the final statement of the holding repeats that language. That gives Shumate a foothold to argue that domicile of the parents is relevant and should be read into the language of the 14th Amendment. There is a small group of lawyers making that argument; it’s like watching the formulation of an argument by a committee of pre-law students.
The nearly unanimous consensus is that Shumate is completely wrong. Here’s a recent example.
Application of Rules
Both Rule 3.1 and FRCP 11 prohibit lawyers from raising frivolous legal issues. Both allow for “good faith” arguments for reversal of existing case law. Public officials like Shumate are held to a higher standard. There is no definition of “frivolous”.
In this case, Shumate has two good faith arguments. First is his argument that the question raised and the holding in Wong Kim Ark reference the domicile of the parents, so the case doesn’t control cases where there is no domicile. This creates two further problems. First, the decision isn’t at all clear on the meaning of domicile. Second, the term domicile is not used in the 14th Amendment. Generally when a law is plain on its face there is no need to look further. Still, it’s not frivolous.
The second plausible argument is that there’s a dissent in Wong Kim Ark on behalf of two members of the Court. That is grounds for Shumate to argue for a reversal of the case. I didn’t read that dissent, so I have no opinion about it. Its mere existence is enough to protect Shumate.
There are two other considerations. This is a motion for a TRO, not a fully briefed and considered set of pleadings. More latitude should be allowed in such circumstances. Also this is the president’s position, and in the past that has carried some weight, giving cover to the DoJ lawyers. I think the second should be disregarded in Trump’s case.
For these reasons, I don’t think a claim of ethical violations would succeed at this point. I do think that continuing to push the domicile argument, which seems extremely weak, especially on appeal, might raise concerns.
The lesson
I can’t think of a better case for sanctions purely based solely on a frivolous legal theory. The language of the 14th Amendment is clear and unambiguous. The leading precedent has stood for 125 years, through times of far worse xenophobia than ours, but Congress has not acted in any way to affect the decision. It has not been controversial until very recently, and there is no meaningful academic support for change.
That tells me that bringing a disciplinary case under Rule 3.1 or a demand for sanctions under FRCP 11 on a purely legal question is not likely to succeed. The ability and willingness of today’s lawyers to create arguments out of nothing, and the willingness of the Trump Protection Squad (Roberts, Thomas, Alito, Kavanaugh, Gorsuch, and Barrett) to discard precedent on ridiculous grounds, should be protection.
I will say, however, that a lawyer who refused on ethical grounds to work on this case would be fully justified. Of course, they’d be fired.
1. ‘The ability and willingness of today’s lawyers to create arguments out of nothing’
For Trump’s lawyers the question is, as Humpty Dumpty put it: ‘which is to be master — that’s all.” Power, that’s the thing. If he has that, he is safe from all of those nasty voices banging away inside his head.
2. ‘Of course, they’d be fired.’
Cannot their bar councils protect them? I’m not a lawyer so I don’t know exaqctly what they can do but surely they can’t just sit back and watch their members kowtow to a wannabe Stalin?
People will fight. Europe are getting their arses in gear; Starmer has the potential to build his legacy here and be the Churchill-type that Farage has been pretending to be all these years.
I just hope he doesn’t fuck it up.
Great discussion as always. Q: You note “I think the second should be disregarded in Trump’s case.” Can you please elaborate?
Each branch of government has a duty to interpret the Constitution and to act in accordance with its understanding. SCOTUS should start with a presumption that the other branches are carrying out this duty in good faith.
Trump has repeatedly and very publicly espoused inane theories about his power under the Constitution. His henchmen have done the same thing. Now they have actually done things all non-Trump lawyers would call illegal, especially in the firings and refusals to fund programs as required by congressional legislation. These are apparently violations of the Take Care Clause. His lawyers show no hesitancy in supporting these illegal acts. In my view, they are not entitled to any presumption of correctness or even good faith.
Are Trump’s legal theories simply inane or totally insane?
To call them insane would insult most people suffering mental illness.
No, Trump’s theories are whatever they have cooked up that sounds like the best way to cover them doing what they want to do. There’s no insanity here at all. Just power and lust for more power, unchecked by any sense of civic responsibility.
1. Pick the crime or sin you want to justify.
2. Find the rulebook that allows it or does not explicitly disallow it. Constitution, bible, Trump’s unwritten rules of common sense, etc.
3. Frame yourself accordingly, e.g. if you picked the bible then call yourself a Christian; if you picked the Constitution call yourself a law and order guy; if you picked Trump call yourself a patriot with common sense.
Should Shumate (for Trump) succeed in an argument based on what seems like an invented “domicile” exception–grounded in what appears to be a tortured reading of Wong Kim Ark–and especially given your note that “the case doesn’t control cases where there is no domicile,” what precedent would that set for babies born to homeless people?
Trump and Trumpism thrive on the dehumanization and, specifically, the unpersoning of entire categories of human beings. Here they target immigrants’ children. But why stop there?
I apologize for the thorny wording of my question; I’m not a lawyer, and while I find your post brilliantly clear AND clarifying, the issues it raises both trouble me and challenge my comprehension of the legal complexities. If I’m misreading or over-reading, please correct me!
As you note, the definition of domicile becomes crucial. In your not so hypothetical case, the parents are apparently citizens. The child of a citizen is a citizen without regard to domicile. That’s why Ted Cruz is a citizen, and John McCain. Both were born to citizens but abroad, and so were in no sense of the word domiciled here.
The domicile requirement would have to be crafted so as to avoid your hypothetical. The more complicated the rule becomes, the less likely SCOTUS is to accept it.
But is Ted Cruz a “natural born citizen” for the purpose of of eligibility for the presidency? I was willing to cut McCain – the son and grandson of true war heroes – and born in the Panama Canal Zone (where the U.S. exercised powers as if it were the sovereign) some slack. While Congress has granted Cruz citizenship by virtue of being born abroad to a US citizen, I’m not sure that that cures the Constitutional question of who is a “natural born citizen.” Of course it’s a laugh riot that Canada granted Cruz citizenship by virtue of his birth there, when neither of parents were Canadian citizens.
If Ted Cruz’s parents were Americans, he was born overseas, and they registered his birth, he’s a “natural born citizen” for constitutional purposes, for the same reason John McCain was.
I’m not sure I concur with EoH here, because while McCain was born in the US controlled Canal Zone (I’ll suppose his father was on USN duty there) Cruz was not. IIRC only his mother was a US citizen, but neither parent filed the INS forms required to ground the child in US citizenship, then or later.
Cruz is questionably a citizen – I don’t think it’s ever been definitively answered. And it really should have been. I think it got dropped along with his primary campaign.
I do know that if you’re born outside the US, and your birth wasn’t registered, you’re going to have to be naturalized to ensure your status. (Happened to a cousin. Both parents were citizens, but they were living in British Columbia at the time, and probably not close to a consulate. So when they hit 65, they had to be naturalized to get Social Security and Medicare, even though they’d been in the US from childhood.)
Scary…does it not put everyone at the same risk…..we all came from somewhere else.
Or maybe they change the wording to be generational? going backwards…
Hi Ed Walker et al,
I am GOAT of career federal agency whistleblowers, even if recently retired – google my name or ask Chatgpt! Agency lawyers are open in saying:
1) we are hired guns
2) our client, our employing agency, is NEVER wrong, and
3) we will do whatever we can get away with to prevent any determination of agency wrongdoing.
And the legal profession say “right on!” I filed a professional misconduct complaint against Cathy Harris, Chairman of US Merit Systems protection Board (MSPB), with DC Bar, her licensing authority about 10 months ago. (She was – unlawfully in my opinion – fired by Trump a few weeks ago, a federal district court issued a TRO restoring her, so she has been in the press recently). My complaint to DC Bar was that she was failing or refusing to implement specific statutory duties of her position. Wanna guess the response of DC Bar?
My complaint was dismissed for failure to state a cause of action – nothing in the ABA rules address the scenario where a gov’t agency lawyer has specific duties to implement specific laws or regulations – so her lawbreaking (in my opinion) is in the immunity box for the legal profession. Additionally, the DC Bar representative (we spoke fairly extensively) took no exception my observation that by current legal ethics she should do her utmost to stonewall/conceal my allegations against her in the name of legal ethics and “protecting” her client, MSPB, the agency she also leads.
Excellent piece and very timely!
I would have expected Judge Coughenour to sanction Attorney Shumate and refer him to the State Bar.