Department of Justice Lawyers Unworthy of the Word “Justice”
On May 19, U.S. District Court Judge Andrew Hanen reprimanded Department of Justice (DOJ) lawyers for their unsavory conduct in intentionally misleading the court throughout an immigration case filed by Texas and 25 other states challenging the Obama administration's deportation amnesty policy. Such conduct was “egregious”, “unseemly and unprofessional” and was part of a “calculated plan of unethical conduct”, according to Judge Hanen. Judge Hanen’s sweeping May 19 Order requires all DOJ lawyers who litigate in the 26 plaintiff states to take remedial ethics classes—at least three hours of annual ethics training—for the next five years. The order further requires U.S. Attorney General Loretta Lynch to submit a “comprehensive plan” detailing how such unethical conduct will be prevented in the future. Finally, to boost accountability, the Order requires that an individual to be appointed to take responsibility for ensuring DOJ compliance with his order.
At issue in the case is President Obama’s 2014 executive expansion of a 2012 program which allowed people who were brought to the U.S. illegally as children to obtain work permits and reprieve from deportation for two-year renewable periods. In November 2014, President Obama announced the intention to lengthen the two-year reprieve to three-year renewable periods and to delay deportation of parents of U.S. citizens and lawful permanent residents. The proposal would affect as many as 5 million illegal immigrants. Last year, in response to a suit by the 26 plaintiff states arguing the proposal violated federal law and went beyond the president’s constitutional powers, Judge Hanen issued an injunction to halt the implementation of the 2014 policy, including the proposed three-year reprieves, just days before applications were to be accepted in February 2015. This injunction was later upheld by a federal appeals court and is now before the U.S. Supreme Court.
In the meantime, Judge Hanen takes issue with the DOJ lawyers’ false and misleading assurance that the federal government would not begin implementing the new program rules announced in 2014 before February 2015, which he took into consideration in issuing the injunction. To Judge Hanen’s surprise, the DOJ lawyers knew that between November 2014 and February 2015, the administration was approving three-year amnesties—over 100,000—to so-called “Dreamers”, or those who already qualified for protection from deportation under the 2012 program.  According to Judge Hanen, the DOJ lawyers intentionally and actively hid such information from both the court and the 26 plaintiff states who sued to stop the amnesty, in addition to misleading the court regarding the number of three-year extensions were in fact granted.
Judge Hanen’s disdain for the DOJ lawyer’s deception is expressed numerous times in the May 19 Order. “[T]he Justice Department lawyers knew the true facts and misrepresented those facts to the citizens of the 26 plaintiff states, their lawyers and this court on multiple occasions,” according to Judge Hanen. The ruling further stated, “The Government’s lawyers failed on all three fronts. The actions of the DHS should have been brought to the attention of the opposing counsel and the Court as early as December 19, 2014. The failure of counsel to do that constituted more than mere inadvertent omissions — it was intentionally deceptive. There is no de minimis rule that applies to a lawyer’s ethical obligation to tell the truth.”
Judge Hanen went on to write, “Such conduct is certainly not worthy of any department whose name includes the word ‘Justice’” and concluded that, “In fact, it is hard to imagine a more serious, more calculated plan of unethical conduct. There were over 100,000 instances of conduct contrary to counsel’s representations.”
While Judge Hanen strongly expressed that the DOJ lawyers’ conduct amounted to deliberate, repeated acts of deception, his hands were tied as he could not toss all arguments since the case is before the Supreme Court. Nor could Judge Hanen, in good conscience, impose a financial penalty on the government that would end up being paid by taxpayers. As such, the best he could do was order all DOJ lawyers headquartered in Washington, D.C. who practice in any of the 26 plaintiff states take remedial ethics classes “taught by at least one recognized ethics expert who is unaffiliated with the Justice Department.”  Though the requirement for remedial ethics classes is sweeping and covers hundreds of DOJ litigators, the punishment seems too gentle in light of the rebuked conduct. There’s hope, however; it remains to be seen what U.S. Attorney General Lynch will come up with in the forthcoming court-ordered comprehensive plan to prevent such unethical behavior by DOJ lawyers from happening again.
— By Keobopha Keopong, Esq., Barnes Law
Keo Keopong is an associate attorney with Barnes Law, licensed to practice law in California.
The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 http://www.abajournal.com/news/article/federal_judge_blasts_doj_imposes_ethics_class_on_litigators_in_26_states_de; http://blogs.wsj.com/law/2016/05/19/furious-federal-judge-orders-justice-department-lawyers-to-undergo-ethics-training/; http://www.washingtontimes.com/news/2016/may/19/judge-orders-doj-lawyers-remedial-ethics-classes/?page=1
 MEMORANDUM OPINION AND ORDER, Case 1:14-cv-00254, Document 347 Filed in TXSD on 05/19/16, pgs. 1, 20.
 State of Texas, et al. v. United States of America, et al., Case 1:14-cv-00254, Southern District of Texas Brownsville Division
 http://www.abajournal.com/news/article/federal_judge_blasts_doj_imposes_ethics_class_on_litigators_in_26_states_de; http://blogs.wsj.com/law/2016/05/19/furious-federal-judge-orders-justice-department-lawyers-to-undergo-ethics-training/
 Supra n.1.
 Supra n.1.
 Supra n.1.
 Supra n.1.
 MEMORANDUM OPINION AND ORDER, Case 1:14-cv-00254, Document 347 Filed in TXSD on 05/19/16, pg. 4.
 Id. at 13.
 Id. at 6.
 Id. at 20.
 Judge Hanen also ordered the government turn over to the court the list of names of those granted the three-year reprieve and stated the 26 plaintiff states can move to get a look at the list if they can prove damages stemming from the applications. http://www.washingtontimes.com/news/2016/may/19/judge-orders-doj-lawyers-remedial-ethics-classes/?page=1