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A Cautionary Tale Of The Limited Reach Of Legal Ethics

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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.

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Aggressive Defense Of The Rule Of Law

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Trump and his henchmen have declared war on the rule of law. Defending it will require aggressive responses. It’s time for heavy use of Rule 11

Here are the relevant provisions of Rule 11:

(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; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

(c) Sanctions.

snip

(4) Nature of a Sanction. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation. …

Every pleading from the government should be closely examined. If there are reasonable grounds, the affected parties should immediately demand preservation of records proving compliance with Rule 11(b).

Example: Illinois Sanctuary City laws

DoJ sued Illinois, Cook County, and Chicago over our sanctuary city laws and the policies adopted pursuant to them. (Full disclosure: I am a Chicagoan.) The suit claims that the laws were intended to and do interfere with the ability of the feds to enforce immigration laws. There is a lot of bluster about this, but there isn’t a single specific example of active interference with the feds. There are no specific allegations of damage done by enactment or compliance with the laws and policies.

The complaint lays out the provisions of Chicago’s policy in ¶¶ 41-50. Then:

51. Upon information and belief, Chicago law enforcement officials have been chilled by these prohibitions.

52. Upon information and belief, Chicago law enforcement officials are also confused by the restrictions on them and thus do not provide even the permissible cooperation out of fear of punishment.

The defendants should demand preservation of all records showing that the lawyers who filed this suit had cause to believe that there is evidentiary support for these allegations, or that it is likely that discovery would uncover evidentiary support.

But, even if there is such chilling or confusion, it doesn’t prove the case alleged by the feds. For example, it is likely the case that the feds can seek clarification of the rules from the superior officers of the duty people. There is no allegation that any actual federal agent has been unable to obtain any result permitted by the law. That information is obviously available to the government’s lawyers if it existed.

It appears that Chicago has a powerful defense against these claims under the anti-commandeering doctrine. Here’s a report from the Congressional Research Service. It says that there are six district court opinions all holding in Chicago’s favor.  I haven’t checked to see if there is later precedent (but this indicates there isn’t any ). If that’s right, then a demand should be made for preservation of records regarding how and why this suit was filed. Was there an improper purpose, like a political purpose?

The demand should include any and all records at the Department of Justice in D.C., as well as documents in the possession or under the control of the US Attorney who filed the suit and all of the lawyers who signed the complaint. The demand should also cover all documents justifying a claim that anti-commandeering case law should be ignored or overturned, and documents related to that determination.

This demand will set up a possible counterclaim for abuse of process as well as sanctions under Rule 11.

Example: Birthright Citizenship cases

Trump’s executive order on birthright citizenship is at stake in several pending cases. Judge Sorokin of the District of Massachusetts issued a preliminary injunction against implementation of the EO in a 31 page opinion. Here’s footnote 8:

In fact, the defendants’ discussion of Texas in their papers verges on misleading. The language upon which they most heavily rely appears in a footnote quoted in their opposition memorandum and referenced during the motion hearing. Contrary to the defendants’ characterization, that footnote is not a “holding,” and it does not “foreclose[]” the State plaintiffs’ standing in this case. Id. Rather, it acknowledges that “States sometimes have standing to sue . . . an executive agency or officer,” and though it warns that “standing can become more attenuated” when based on “indirect effects” of federal action, it stops short of saying such effects could never satisfy Article III. Id. This case, in any event, concerns direct effects. Cites omitted.

That doesn’t verge on misleading, it’s misleading, and required the parties and the Courts to expend time and energy unraveling it.

The Judge also calls out the government’s argument that birthright citizenship requires “mutual consent between person and polity”. The child, of course, can’t consent so that falls to the parents. The government says that if the parents are here illegally, the polity, the US, did not consent to citizenship.

Judge Sorokin rejects that argument, saying[ that birthright citizenship is granted to the child. The parents are not involved. Second, all of the parents of enslaved people were here under duress, not by consent. Therefore the argument means the 14th Amendment doesn’t apply to children of slaves. The Court says this argument “verges on frivolous.” I’d say it crosses the frivolous line into stupid.

Both the state and private plaintiffs should move for sanctions under Rule 11. On its own, the Court should require all the lawyers who signed the pleading to attend three hours of ethics training and certify their attendance within 60 days.

One more example.

Out-of-state lawyers are usually required to apply for and receive permission to appear pro hac vice. Most right-wing litigation groups, like Americans Defending Freedom, use out-of-state lawyers. If sanctions are appropriate under Rule 11, there is nothing to prevent the court from imposing as a sanction termination of pro hac admission. Admission pro hac in future cases will set up the possibility of moving to deny or revoke admission on the grounds that the lawyer has been revoked in one court. That will certainly deter garbage filings.

Conclusion

I know courts are reluctant to award sanctions. But this administration is abusing the courts, just as Trump has done all his life. If courts refuse to protect themselves, and refuse to fully protect the people damaged by illegal actions, their already trashed reputation will sink into negative territory.

I also know that lawyers don’t like to ask for sanctions. It’s an unwritten rule tied to notions of collegiality.  I know it’s particularly difficult with government lawyers, because of the risk they’ll appear in another case where your clients might be hurt.

But. Adhering to unwritten rules has led to this: Trump walks free, free to abuse the courts, free to wreak vengeance, free to wreck what it took centuries to build. Fixing this is more important than fake gentility.

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