Wednesday, July 10, 2019

The Not-So-Fine-Line Between Creative Lawyering And Dishonesty

by Michael C. Dorf

My latest column on Verdict offers some thoughts on the attempted substitution of a new team of lawyers trying to defend the decision of Commerce Secretary Wilbur Ross to add a citizenship question to the 2020 US census. The column speculates along two dimensions. First, I say it is likely that the original team refused to participate further in what they regard as unethical lawyering and thus either quit or were removed. Second, I say that the original team could have objected to further participation along one or both of two grounds: (a) they did not think they could honestly say that the Ross decision was taken for any other reason than to gain partisan advantage by undercounting Democratic-leaning Latinx and other minority communities; and/or (b) they could not tell the court that sufficient time remains to print and distribute census forms with the citizenship question, given their repeated representations that June 30 was a hard deadline.

Here I want to focus on (a). In particular, I want to ask what exactly makes the task that the original Dep't of Justice lawyers might have attempted to decline so different from a task that lawyers routinely perform for clients. Before diving in, I want to acknowledge (as I do in the column) that my assumptions about what is going on within DOJ are necessarily speculative. Even if I'm mistaken about what is happening, however, the points I make here have wider application.

As I explain at greater length in the column and in an earlier piece here on the blog (and cross-posted at TakeCare), last month the SCOTUS invalidated Secretary Ross's addition of the citizenship question on the ground that the reason advanced in defense of it--to acquire citizenship data in order to enforce the Voting Rights Act--was not the actual reason for the Secretary's action. Chief Justice Roberts does not actually say in his opinion what the actual reason was, but everyone knows that the real reason was to gain partisan advantage. That's why I found the remand to the agency curious. How could Commerce possibly generate a new "real" reason for adding the citizenship question, when the Trump administration's real reason has not changed?

One not-unethical path that the DOJ lawyers could take would be to argue that if Commerce swiftly undertakes new final agency action based on some other rationale, the courts would have to blind themselves to everything that came before. However, given how pretext operates in other contexts, that would almost surely be a losing argument. And, in the words of AG Barr, it appears that the administration wants to "clarify the record," which at present sounds like a euphemism for "provide a new pretextual explanation for the addition of the citizenship question." If so, it is wholly understandable that DOJ professionals would balk at participating in what amounts to a violation of the basic duty of candor that bar membership imposes on all attorneys.

And yet, one might ask, don't lawyers routinely provide pretexts for their clients? In a way yes, but as I shall explain, in a more important way, no.

In my experience, even relatively sophisticated clients focus on legally irrelevant issues. Here's a schematic example: The client owns and operates a pack-and-ship store. A competitor opens another pack-and-ship store across the street. The client doesn't want the competition. The client may even feel aggrieved based on what she regards as a quasi-moral but not legal objection. For example, she may say something like: "I've been in this location for twenty years. The newcomer is free-riding on my work by siphoning off customers with cut-rate prices." The lawyer's job is to explain to the client that the law does not forbid the opening of competing stores and, if possible, to chart a course of action that might nonetheless achieve the client's goals. Perhaps the competitor lacks some required permit or improperly disposes of toxic chemicals in violation of some regulatory scheme. The lawyer could contact the relevant enforcement authorities, thereby increasing the competitor's costs or even driving the competitor out of business. The lawyer will have thereby used the law to achieve the client's goals, even though the client's ultimate goals had nothing to do with the particular legal advantage taken.

This sort of dynamic operates in many contexts. Cause lawyers who oppose the death penalty in all circumstances might bring a case challenging a method of execution as posing an unacceptable risk of pain in violation of the Eighth Amendment. They might even think that the arguments they make actually justify the result, but that is not their main goal or their client's main goal. Their main goal is to delay execution as long as possible and to raise the cost (and therefore reduce the numbers) of executions.

Meanwhile, there is no requirement that a lawyer believe the arguments she makes. So long as there is sufficient support for the argument, it is perfectly acceptable to advance an argument that the lawyer personally finds unpersuasive, all things considered. This allowance figures into my own practice with respect to brief writing and signing. If I am asked to write or join an amicus brief of scholars, I will only do so if I truly believe in the arguments. However, if I am acting as a lawyer representing a client (whether pro bono or for a fee), I am comfortable making some arguments that I would ultimately reject as a scholar, so long as they fall within the bounds of reasonable disagreement, given the relevant legal materials.

Given the routine practice of lawyers coming up with legal justifications for courses of action their clients want to take for other reasons, why did the original team of DOJ lawyers apparently refuse to continue to do so for Trump? The answer is that the law sometimes but not always makes an actor's actual motives relevant. When it does so--as the SCOTUS majority held it does in the census case--then the client's motive is no longer simply about a legal argument but a question of fact. And lawyers have a professional legal duty not to misrepresent facts.

Under the ABA Model Rules of Professional Conduct on which state bar rules are at least loosely based, a lawyer cannot knowingly suborn perjury or otherwise make a false statement of fact. The relevant rule also forbids the making of a knowingly false statement of law, but an argument that the law supports some result is not a false statement of law merely because it does not reflect the lawyer's view of the best legal outcome, all things considered. By contrast, for a lawyer to sign her or his name to a document stating that now the real reason for adding the citizenship question to the census is to comply with the UN's recommendation or to enforce Section 2 of the Fourteenth Amendment or some other post-hoc rationalization would be to make a false statement of fact.

Thus, notwithstanding the role that lawyers frequently and legitimately play in identifying legal justifications for clients to engage in courses of conduct they wish to follow for other reasons, the DOJ lawyers who presumably refused to generate a new pretext for Trump, Ross, and Barr acted appropriately.