Balkinization: Who's on Ethical Thin Ice in the <i>Hargan v. Garza</i> Abortion Case?

Who's on Ethical Thin Ice in the Hargan v. Garza Abortion Case?

Marty Lederman

By Marty Lederman and David Luban
This coming Friday, the Supreme Court Justices are scheduled to consider, at conference, the government’s nominal “petition for certiorari” in No. 17-654, Hargan v. Garza. Marty has already written at length on the petition, and we won’t repeat here the many ways in which it is deeply problematic. Since that first post, there have been further revealing proceedings in the case (see, e.g., this post and this one), and Carter Phillips/Sidley Austin have filed a terrific brief in opposition on behalf of the Respondents, in which they (among other things) carefully explain why the SG’s accusations of ethical breaches by Jane Doe’s attorneys are groundless. The SG recently filed a reply brief, which doubles down on the allegations of unethical attorney behavior; and David has published a post on why the ethics authorities the SG cites in his reply brief do not support his accusations.

In this post, we address two further items, both related to the attorney ethics aspect of the petition: (i) First, we note the incongruity of the SG using this case to make an unprecedented attack on opposing counsel’s ethics, when the Department of Justice itself has acted in ways that themselves raise ethical questions. (ii) Second, we address the death penalty analogy that the SG invokes on the final page of his reply brief--an analogy that appears to have had traction with some readers, if our conversations are any indication.

1. People in Glass Houses . . .

As Marty explained in a recent post, at the October 20 oral argument before the D.C. Circuit in Hargan, DOJ counsel assured the panel that if a minor in ORR custody was pregnant by virtue of an assault or rape, ORR would allow her to obtain an abortion (see pp.23-24). When it turned out that was not true--when the government was compelled to disclose documents revealing that the ORR Director would prohibit a minor from terminating a pregnancy that was the result of a rape, and had actually done so in the case of Jane Poe based upon his own assessment of whether carrying the pregnancy to term was in her best interests--the court of appeals virtually invited DOJ to correct the record, citing Appellate Rule of Appellate Procedure 10(e)(2), which governs cases in which “anything material to either party is omitted from or misstated in the record by error or accident.”

DOJ did not accept the invitation: On Wednesday, it filed a joint motion to dismiss the plaintiffs’ motion to unseal the Director's decision (which had already been unsealed in the district court). As of this writing, however, DOJ has not done anything to correct its misstatements to the court of appeals involving cases of rape. Ethics rules expressly prohibit a failure to correct material misstatements to a tribunal. Under the D.C. Rules of Professional Conduct, for example, “a lawyer shall not knowingly … fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer, unless correction would require disclosure of information that is prohibited by Rule 1.6 [the duty of confidentiality].” The corresponding rule in the Model Rules contains a similar the same obligation, differing only in that it doesn’t have a confidentiality exception. (Of course, there’s nothing confidential about the Director’s decision in the Poe case, which is now part of the public record.)

This obligation falls not only on the DOJ lawyer who made the statement: under D.C. Rule 5.1(c)(2), it binds that lawyer’s supervisor, as well, if he or she “knows or reasonably should know of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.” (In litigation in the District of Columbia, this is the applicable rule. The corresponding Model Rule omits “… or reasonably should know.”)

The Department has also failed to correct an impression that it conveyed (perhaps inadvertently) to the D.C. Circuit panel, reflected in Judge Kavanaugh’s dissenting opinion on October 24, that “[t]he Government has . . . expressly assumed, . . . presumably based on its reading of Supreme Court precedent, that the Government lacks authority to block [a minor in its custody] from obtaining an abortion” (p.2). As we now know, that understanding of the government’s view was not correct: ORR asserts that it does indeed have the authority, which it has exercised, to block such a minor from obtaining an abortion, even when (as in the Jane Poe case) there was no prospect of transferring her to a sponsor in the few days remaining before her abortion would be prohibited by state law.

DOJ, however, has permitted the courts, including the Supreme Court, to assume that Judge Kavanaugh accurately described ORR’s view about its lack of authority to block minors from obtaining abortions. (In this case, we’re not sure Judge Kavanaugh was right that the government had “expressly” represented that view--not at the oral argument, anyway. To be sure, government counsel left that impression; but, in contrast with the statements about rape, we don’t believe there was ever an occasion for counsel to state an unambiguous view on that question of ORR authority.)

Unlike the obligation on lawyers to correct material misstatements to a tribunal, no rule requires them to correct a judge’s mistaken impressions. Even so, one would expect the Solicitor General to take steps to ensure that such an importantly inaccurate characterization of the government’s legal position would not linger on in the litigation, especially while he is asking the Supreme Court to consider the merits of the ORR practice—an assessment that can only fairly be done with a proper understanding of the scope of the agency’s views of its own authority. At a minimum, DOJ’s decision to allow Judge Kavanaugh’s assumption to go unrebutted, together with the failure to correct DOJ’s misstatement about rape cases, provides relevant context in which to consider the SG’s highly irregular allegations against Jane Doe’s lawyers.

2. The Misleading Execution Analogy

In an effort to justify his request that the Court sanction Doe’s lawyers, the SG offers the following “analogous example” at the close of his reply brief:

[C]onsider if government counsel informed opposing counsel that the unavailability of a particular drug would prevent the government from carrying out an execution until some future date, but after learning that the prisoner planned to file an emergency stay application, government counsel undertook extraordinary efforts to obtain the drug and to carry out the execution sooner without notice to opposing counsel. The conduct would be no more becoming a member of the Bar of this Court because the government’s statements to counsel were accurate when made, see Br. in Opp. 23; the government never “forsw[o]r[e]” a different course of action, see id. at 25; and nothing prevented counsel from extracting more explicit commitments rather than taking the government at its word, see id. at 29. Members of the Bar of this Court, particularly in the context of emergency proceedings, often rely on—and should be safe in relying on—the duty of counsel to update statements that have become materially false, let alone as a result of counsel’s own conduct.

This alleged death penalty analogy is inapt in at least two respects: (i) it doesn't accurately parallel what happened in Jane Doe’s case; and (ii) it overlooks a fundamental distinction regarding the clients’ obligations in the two cases.

In lieu of the first sentence of the SG’s paragraph, the following would be a more accurate analogy to what happened in the Jane Doe case, even if we assume that the government is correct on one prominent, disputed fact:

On a Tuesday, a court declared that the state could execute a defendant by lethal injection if it used a particular drug. That same evening, Government counsel informed opposing counsel it did not appear the drug would be available until Thursday morning, and that therefore Thursday was the earliest the execution could occur. [This last point is the one that is disputed in the Jane Doe case: As we explain in a footnote, it is unclear whether any counsel for Doe—let alone any member of the Supreme Court Bar—ever represented to a government lawyer that the abortion would not or could not be performed until Thursday, Oct. 26.*] In the meantime, however, Government officials, including counsel, were making efforts to obtain the drug as soon as possible, and continued such efforts even after learning that the prisoner's counsel planned to file an emergency stay application in the U.S. Supreme Court on Wednesday. Still on Tuesday evening, state officials learned that they might be able to obtain the required drug the next morning (Wednesday), and therefore they rescheduled an appointment of the prisoner with medical personnel from 7:30 Wednesday morning to 4:15 that morning, just in case they were able to obtain the drug by then. They did not withhold this fact from the prisoner and his counsel: At 9:30 p.m., they informed the prisoner's counsel that the medical appointment had been moved to the unusual hour of 4:15 a.m., which naturally caused defendant's counsel to wonder whether the purpose of the appointment also might have changed. Despite this unusual development, defendant's counsel did not seek any expedited relief from the courts--not even an administrative stay--during the almost seven hours between 9:30 and 4:15. Nor did defendant's counsel request that the state forbear from executing the prisoner while they sought judicial relief.

Sometime after midnight, early on Wednesday, the state officials confirmed that the drug would be available at 4:15 a.m., and accordingly made arrangements to execute the prisoner at that time. When the defendant and his counsel arrived at the 4:15 “appointment,” they were informed that the execution would occur shortly. Even then, counsel still did not take any steps to seek a stay of the (now imminent) execution. The state then executed the defendant.

The relevant question in this improbable scenario, then, is whether any of the state’s counsel, including in particular those who were members of the Bar of the Supreme Court, violated any ethical or other obligations when, after midnight on Wednesday, they learned that the drug would be available for use at 4:15 a.m. but failed to inform defendant’s counsel of that fact in the early hours of Wednesday morning.

The SG suggests that of course such a failure would, at a minimum, consist of conduct unbecoming “a member of the Bar of this Court.” And there’s some intuitive appeal to that idea. After all, even in the amended hypo that brings it closer in line to what actually occurred in the Jane Doe case, the failure to tell the defendant and his counsel of the expedited time of execution surely does not seem kosher, or conduct worthy of government officials.

OK, so if we would properly condemn that failure as unseemly gamesmanship (at best), why shouldn’t we treat Doe’s lawyers likewise here?

Because the SG’s purported execution analogy overlooks a fundamental distinction between the two cases.

The SG’s execution hypo is not really a case involving the ethical obligations of lawyers. Our natural, and proper, disdain for what occurred in the hypo is a function of the fact that the client itself -- that is to say, the state—acted improperly by springing a “surprise” expedited execution on the prisoner. In Texas, for example—where the Jane Doe case occurred—the convicting court sets the execution date with at least three months’ notice to the defendant, and only the court can modify that date, also in a transparent manner that gives notice to the defendant. And Texas’s death penalty protocol further specifies a whole array of procedures that are to occur over the final two weeks before execution, including that the condemned person be allowed to meet with friends and family on the morning of execution, and with counsel and a minister several hours before the lethal injection. (The SG’s hypothetical would involve a violation of all of these norms.) We assume there are similar rules in place in all death penalty jurisdictions, guaranteeing such advance notice, regardless of whether the judiciary or the executive sets the date. Indeed, if there were not such statutory protections, it would almost surely violate due process and/or the Eighth Amendment—it would certainly be cruel and unusual—for a state to execute a defendant without advance notice of the date, or on a date earlier than had been represented to him.

All of which is to say that the state is legally forbidden from surprising the defendant by moving up the time of his execution without notice, regardless of whether the defendant's counsel has indicated any plans to appeal. Intuitively, we all understand that—and playing on that intuition is what gives the SG’s far-fetched hypothetical whatever force it has.

Of course, the fact that the state itself has violated the law does not absolve the state’s lawyers: they cannot be complicit in violating the state’s duties. (See Model Rules 1.16(a)(1), 8.4(d).) In that scenario, however, the lawyers’ breach of obligation is not, as the SG implies, to fellow members of the bar who are trying to schedule their filings on appeal, so much as it is to the defendant himself, who is legally entitled to know in advance when the state is going to put him to death. (Moreover, and in contrast to the details of a woman’s abortion, the timing of a public execution is not, of course, confidential client information that the state’s lawyers may and must protect.)

In Hargan v. Garza, by contrast, Jane Doe obviously had no legal obligation to tell the U.S. government when she would obtain an abortion. (Of course, because she was in ORR custody, she had to tell the shelter the times of her medical appointments—as she did—so that the shelter would allow her to be transported there accompanied by shelter personnel.) And if Doe had no obligation to tell the government what would happen at the clinic at 4:15 a.m. on Wednesday, October 25, likewise her attorneys had no ethical obligation to breach her confidence by expressly informing government counsel concerning something that the shelter personnel—and presumably the government lawyers—already suspected about an appointment occurring at 4:15 in the morning. Indeed, as David explained in his previous post, Doe’s lawyers would have been ethically prohibited from doing so.

* In his petition, the SG cites page 2 of a declaration of an Assistant U.S. Attorney for the proposition that at approximately 7:30 p.m. on Tuesday, Oct. 24, Ms. Doe’s attorney ad litem informed the AUSA that as a result of the initial doctor's unavailability, “the abortion could not take place until October 26” (p.13).

In his brief in opposition, Carter Phillips denies that the record shows any such representation by Doe’s attorney ad litem (p.24):

[T]he government repeatedly claims that opposing counsel “represented” “that no abortion would take place until October 26,” Pet. 11; see also id. at 13, 14, 19. Yet no such representation appears in the emails or the declaration of the AUSA lodged with the Court by the Solicitor General that the government cites.

In his reply brief, the SG inexplicably writes (p.9) that “respondent does not dispute that Ms. Doe’s attorney ad litem told the government an abortion could not take place until October 26—a representation that could not have been clearer” [citing back to page 13 of the petition, which in turn cites the AUSA’s declaration]. As a statement about what the respondent disputes, this is just wrong: As the quotation above from the Carter Phillips brief shows, the respondent certainly does dispute that characterization of what the attorney ad litem represented. As for which characterization is correct, we have no way of knowing what the record shows on this point, because the relevant documents remain sealed. For purposes of this post, we’re assuming for the sake of argument that the attorney ad litem did make such a representation to the AUSA. Of course, if that is not the case, then the SG’s argument becomes even less defensible—indeed, it might even be based upon a material misstatement of fact.

Posted 1:36 PM by Marty Lederman [link]