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.
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.
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.