Lawyers Heading Back to School

May 30, 2016
 

A federal judge in Texas has ordered the U.S. Department of Justice to send a lot of its lawyers back to school--to remedial classes in legal ethics, that is. The Justice Department, meanwhile, says the judge’s order was based on a misunderstanding, rather than an ethical failure.

The backdrop is a lawsuit challenging the Obama Administration’s decision in 2014 to expand dramatically the number of undocumented immigrants who would receive temporary deferrals to stay in the United States. Twenty-six states challenged the expansion, and the case is currently before the Supreme Court.

The ethics dispute, though, is separate from the merits of the case. It involves one of the most basic rules of legal ethics: don’t lie to the court. The judge says government lawyers told him several times, in late 2014 and early 2015, that the new policy would not be implemented until mid-February. As it turned out, though, the government had already begun implementing one aspect of the new policy with respect to over 100,000 immigrants, and at least some of the lawyers in the case knew it. When I describe it that way, you can probably see why the judge thinks the lawyers misled him.

If I tell you the government’s side of the story, though, it sounds very different. You see, the government already had a policy in place that allowed some undocumented immigrants to get deferrals. The deferrals were good for two years, and if an immigrant continued to meet the criteria, he or she could renew the deferral for additional two-year periods. One piece of the new 2014 policy was to change the two-year period to three years. So, in late 2014 and early 2015, the government had begun granting three-year deferrals to immigrants who were already eligible under the existing policy.

But the government had not implemented the parts of the policy that would expand the pool of immigrants eligible for deferrals—expand it by something like four million people. And those are the parts of the policy that were driving the plaintiffs’ challenge; the twenty-six states that sued claimed the expansion would require them to provide services to lots of additional immigrants. So, according to the government, when its lawyers told the court the policy wouldn’t be implemented until February 2015, they were only thinking of the controversial part—the expansion.

It’s hard to say who’s right or wrong in a situation like this, especially from the outside. As an experienced litigator, I can tell you that the government’s account seems plausible to me: the lawyers simply saw the three-year deferral period as separate from the issues at stake in the case, so it never occurred to them that they might be misleading the judge. Maybe it should have occurred to them, but it’s plausible it didn’t.

But the judge didn’t buy it, and he’s the one who has been living with the case for a year and a half. His order requires three hours of ethics training each year for every Justice Department lawyer stationed in Washington, D.C., who appears in court in any of the twenty-six states involved in the lawsuit. Unless the order is reversed on appeal, that will add up to a lot of training!