The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In a very odd order, Judge Andrew Hanen, the Texas district judge assigned the DAPA immigration case now before the Supreme Court, has ordered the creation of a new continuing legal education program just for Justice Department lawyers based in Washington, D.C. Judge Hanen believes that DOJ lawyers lied to him in the course of the DAPA litigation. His remedy for the ethical breach is rather curious. As part of the remedy, for example, he orders a five-year program of three-hour-per-year live ethics training for all Justice Department lawyers based in D.C. who appear or seek to appear in any court about any matter inside any of the 26 states that joined the DAPA litigation. He writes:
[The Court] hereby orders that any attorney employed at the Justice Department in Washington, D.C. who appears, or seeks to appear, in a court (state or federal) in any of the 26 Plaintiff States annually attend a legal ethics course. [FN: The Plaintiff States include: the State of Alabama, the State of Arizona, the State of Arkansas, the State of Florida, the State of Georgia, the State of Idaho, the State of Indiana, the State of Kansas, the State of Louisiana, the State of Maine, the State of Michigan, the State of Mississippi, the State of Montana, the State of Nebraska, the State of Nevada, the State of North Carolina, the State of North Dakota, the State of Ohio, the State of Oklahoma, the State of South Carolina, the State of South Dakota, the State of Tennessee, the State of Texas, the State of Utah, the State of West Virginia and the State of Wisconsin.] It shall be taught by at least one recognized ethics expert who is unaffiliated with the Justice Department. At a minimum, this course (or courses) shall total at least three hours of ethics training per year. The subject matter shall include a discussion of the ethical codes of conduct (which will include candor to the court and truthfulness to third parties) applicable in that jurisdiction. The format of this continuing education shall be left to the independent expert lecturer. Self-study or online study will not comply with this Order, but attendance at a recognized, independently sponsored program shall suffice.
The order continues:
The Attorney General of the United States shall appoint a person within the Department to ensure compliance with this Order. That person shall annually file one report with this Court including a list of the Justice Department attorneys stationed in Washington, D.C. who have appeared in any court in the Plaintiff States with a certification (including the name of the lawyer, the court in which the individual appeared, the date of the appearance and the time and location of the ethics program attended) that each has attended the above-ordered ethical training course. That certification shall be filed in this cause during the last two weeks of each calendar year it covers. The initial report shall be filed no later than December 31, 2016. This Order shall remain in force for a period of five years (the last report being due December 31, 2021).
Surprisingly, Hanen does not discuss whether he has the legal authority to impose this remedy. Most of the people who have to comply with this order are lawyers who will never enter Hanen's jurisdiction and have nothing to do with the DAPA case. Hanen is even trying to regulate practices in state court in other states. If a DOJ lawyer plans to appear in in state court in Maine in 2021, Hanen in Brownsville, Tex., believes he has the power now to regulate that. Given Hanen's focus in his order with making sure government officials "play by the rulebook," I'm interested to know what rulebook governs Hanen's remedy and whether he is playing by it. But we may have to wait until the government appeals Hanen's order to find out.