Lawyers Who Anger the Feds Face New Penalties by Decree
The Trump administration’s assault on lawyers that represent its perceived adversaries has so far targeted by decree three major firms and quickly taken down one of them, the venerable Paul, Weiss. (Earlier posts in this series here, here, and here.) With a presidential memorandum published March 22, it has now abruptly expanded to a more general scheme of penalties against opposing law firms that take legal positions that it regards as baseless, vexatious, or unreasonable across the range of courtroom disputes in which the federal government is a party.
Unless stopped by the courts or by some sort of pushback from civil society, the policies outlined in this memo will in short order endanger the health of an independent bar willing to stand up vigorously to the federal government.
The new memo spends a while complaining that lawyers who battle the feds in court have at times taken unfounded, baseless, or vexatious positions. Such behavior is nothing novel, which is why there are longstanding rules that provide for the identification and deterrence of lawyerly misconduct of this sort, above all through what is known as Rule 11 of the Federal Rules of Civil Procedure.
As one who has made something of a specialty over many years of writing about lawyering gone wrong, I’ve long been among those who thought there was a good case for a stronger sanctions regime. If you casually browsed the first part of the memo, you might mistake it for just such a proposal to give judges broader power to sanction lawyers under Rule 11, no matter their cause or client.
But that’s not what it does—not at all.
The whole idea of the memo is to take away from the courts the role of assessing whether lawyers who battle Trump’s actions have misbehaved and, if so, what penalty, if any, should be levied. Instead, it asserts an arbitrary and peremptory power in the executive to decide for itself what counts as misconduct by opposing lawyers and penalize it through any or all of the peremptory sanctions that make up the first revenge decrees. These include firm-wide withdrawal of security clearances and contractor penalties calculated to induce large business clients to jump ship from a sanctioned firm. Other sanctions from the first three orders, such as forbidding lawyers from entering federal buildings or speaking to federal employees, do not come in for specific mention but are implicitly included in catchall language authorizing other sanctions as convenient.
They assert a right to levy these sanctions for improper litigation whether or not their own Department of Justice saw fit to ask a court to levy sanctions at the time, and indeed even if they did ask and a judge refused. They assert a right to sanction the opposing lawyers even in cases where those lawyers won outright on the matter that was being contested.
It’s not going to matter what the judges think or what they rule. That’s the whole idea.
Sanctions are a crucial tool for judges to have in reserve to enforce decent behavior in the courtroom. But only a fool or aspiring tyrant would propose leaving the determination of guilt and penalty to the discretion of the state as the opposing party.
The memo also says the Department of Justice will report supposed frivolous filings to the lawyers’ bar associations, as well as endeavor to tag senior partners with responsibility for the misconduct of junior partners. Some of this is not inconsistent with current practice. But the first carries the important practical menace of making life hot for small legal practices comprising one or a few lawyers that may escape the deterrent effects of lost security clearances and contractor work that loom large for BigLaw firms.
There are other differences to note between stepped-up demands for conventional Rule 11 sanctions and what the memo does. In an ordinary courtroom setting, if one side escalates by filing hardball sanctions motions, the other side can often respond in kind. For example, onlookers have more than once wondered whether the positions pressed by Department of Justice lawyers during the past two months might not open them to sanctions motions. Usually, mutual forbearance reigns.
But the new memo is set up to enable after-the-fact taking of revenge long after a case is won or lost. Forget finality and repose! No statute of limitations here. It proposes to start by looking back eight years for supposed misconduct, long enough to settle every grudge from the first Trump administration. Judges, of course, might take a dim view if you asked to reopen a case that settled or otherwise concluded years ago to complain of opposing lawyer conduct that was well known and documented at the time.
It is especially disturbing that the memo names election law as a target of particular interest. The first three revenge decrees targeted lawyers for representing those involved either in campaigns—a topic distinct from elections as such—or in the prosecutions of Trump. But election law is peculiarly relevant to the question of whether after Election Day a governing party will accept the verdict of voters who have turned against it, or will instead seek to bend laws to remain in office. Only the full and fearless airing of the arguments opposed to the incumbent regime can assure public liberty.
As of this writing, one well-known law firm—Keker, Van Nest & Peters—has stepped up to defend the profession’s independence, though it is not itself directly targeted. Its statement, from John Keker, Robert Van Nest, Elliot Peters, Laurie Carr Mims, and the partnership, reads as follows.
Trump’s new Executive Order underscores how far removed this President, Attorney General and Administration are from our nation’s Constitution and bedrock values. Our liberties depend on lawyers’ willingness to represent unpopular people and causes, including in matters adverse to the Federal Government. An attack on lawyers who perform this work is inexcusable and despicable. Our profession owes every client zealous legal representation without fear of retribution, regardless of their political affiliation or ability to pay. We encourage law firm leaders to sign on to an amicus effort in support of Perkins Coie’s challenge to the Administration’s executive order targeting the firm, and to resist the Administration’s erosion of the rule of law.
That leaves dozens upon dozens of other Big Law firms around the country that have not yet joined to raise their voices in protest or been heard in any way. The hour grows late.