The Trump administration last week proposed a rule that would shield Department of Justice lawyers from independent ethics investigations and bar discipline from the states and the District of Columbia. My legal ethics lawyer association’s listserv virtually melted down over it. Almost all of the association’s members are Trump Deranged, but in this case they had just cause to flip out.
The proposed rule would violate a federal law known as the McDade Amendment, which holds government lawyers are still subject to the ethics rules of the states in which they practice, “to the same extent and in the same manner” as every other lawyer licensed in the state. In addition to that, the proposed rule makes no sense: the state bars giveth licenses to practice law, and they obviously can taketh them away.
The Office of Professional Responsibility (OPR) came into being as a compromise measure long ago when politically motivated state bar ethics boards were applying different standards to government lawyers based on partisan interpretations of the ethics rules. OPR has never been as zealous in enforcing ethical standards as local bar associations, and the bars aren’t particularly zealous either. The D.C. bar has had several high-profile spats with OPR over the years, insisting, and rightly so, that it shouldn’t be required to ratify an OPR hall pass for unethical conduct.
I assume, and hope, that the clearly impractical rule change is DOA, and like so many other proposals and floated options from the Trump Administration, it is more of a negotiating ploy than a serious proposal. The truth is that virtually all of the bar associations are dominated by progressives and Democrats, and consider a lawyer being willing to work for the Trump Administration as strong evidence of inherently unethical character. It is also true, as I have discovered to my horror over the past year, that many of the bar associations are untrustworthy and corrupt. This was revealed to me in part when the D.C. bar, whose legal ethics CLE I had been prominently and successfully teaching for three decades, fired me after I tried to open a legal ethics can of worms—the bar’s unique non-lawyer partner option—that would reveal a gross and wriggling failure on the bar’s part to police its members, resulting in nation-wide fraud and harm to tort victims.
A New York Times op-ed about the unethical proposed rule deceptively (and risibly) asserts,
Ethics Alarms 
Lawyers who represented Donald Trump during and after the 2020 Presidential elections have been disbarred, e.g. Eastman. So is Donald Trump trying to prevent something similar from happening, by making sure that lawyers working at the DOJ will not be disbarred for purely political reasons?
Exactly. The Times writer says “good, honest” lawyers are quitting DOJ on principle. I think its out of fear of partisan reprisals.
We already have Democrats on record promising lawfare and prosecutions (e.g. Susan Rice in a recent interview). USA Politics has devolved into war between MAGA Trump supporters, and the Trump deranged. In war the winner decides what is ethical. That is even true for World War II according to Margaret Thatcher, who was unapologetic about meting out victor’s justice in Nuremberg (in which many Nazi’s were condemned using ex post facto laws). Trump’s main concern is not to fall victim to future victor’s justice by his political enemies. So we may be technically correct to call out the DOJ’s actions to prevent that scenario as “unethical”, however given the current political context and recent prosecution history (Laetitia James, Fani Willis, Jack Smith, J6, disbarments of Trump lawyers) Trump should use every tool available to his defense, and of those associated with Trump. Will and can the DOJ proposal work is therefore a more pressing question than whether it is ethical. Sometimes winning (or not losing) is the only think that matters.
I understand why by itself the rule is unethical but help me understand why a defensive strategy that is unethical as a defense against unethical partisan and discriminatory rule enforcement is unethical. It seems like this is an ethics zugswane. How do you fight against unethical practices by bar associations.
Well, I’m trying to do that right now on a couple of fronts. It’s like any other reform effort. Recruit enough trustworthy allies and get the truth out to the public.
Maybe we should say that everything is ethics but ethics is not everything. As a professional ethicist you of course need to come down on the side of ethics. However politics is ethics bizarro world, and sometimes the best approach would be to pick the side you want to win. I have a weak spot for realpolitik as a foreign policy approach emphasizing practical, material factors and national interests over ideology, ethics, or morality. Given the win-at-all-cost approach the Democrats have displayed since the Obama regime I am not going to blame Donald Trump if he follows suit as long as his approach is tactically feasible. A well-known foreign stateman once said that in order to make an omelet you have to break some eggs. If the Democrats can be stopped from pulling the country through all the bullshit during Trump I and Biden administrations (Russia-gate, impeachments, lawfare, J6) then I can live with some concerning ethics for the good of the country. Sometimes winning is the only thing. If that is an ethics rationalization then so be it. National interests matter more than ethical perfection.
The truth is that virtually all of the bar associations are dominated by progressives and Democrats, and consider a lawyer being willing to work for the Trump Administration as strong evidence of inherently unethical character.
Worth saying again.
There’s no time to fight this battle ethically. Not even 3 years left to complete the agenda. Fight fire with inferno.
“Ethics is a luxury we can’t afford now.”
Ethics is never a luxury.
The problem I have with the DOJ on this is that the proposed strategy is ineffective, and most likely will not survive legal challenge, or the overturning of the strategy by a next administration. The main ethics concern I have with Pat Bondi is the lack of competence, and overall lack of success in bringing the miscreants of the Biden administration to justice. E.g. Laetitia James is still AG in New York because the Bondi DOJ is unable to even bring her before a jury for her mortgage fraud. You can say a lot of bad things about Merrick Garland, but he was about the only competent and effective member of the Biden cabinet. Bondi is a disappointment.
We running into a number of core concepts at Ethics Alarms here, namely the Ethics Dilemma and the Ethics Rationalizations.
The Ethics Dilemma is between an undesirable outcome (lawfare resulting in prison terms and disbarments for being professionally associated with Trump and his administration) versus an ethically questionable proposal. The basic assumption is that we always ought to choose the obviously most ethical path, and accept the undesirable outcome. I would like to challenge this approach on a couple of grounds. My first ground is that the undesirable outcome may be highly unethical in nature. A politicized DOJ that is fully weaponized against political opponents is a highly unethical situation with great ramifications for the nation. This turns the Ethics Dilemma into an Ethics Conflict, were you have to weigh the implications (including the ethics) of the various alternatives; resolution of ethics conflicts requires treating ethics as a weighable factor instead of an absolute. My second ground is simply lived human experience. If you have to choose between an unjust conviction resulting in a prison term, and an ethically questionable strategy to beat the rap, what would you want your lawyer to do? I want my lawyer to zealously act in my best interest no matter what, and keep me out of prison; I will be most likely not be concerned with the all the ethics facets of his strategy but only whether this strategy works. Clarence Darrow comes to mind.
So hereby I am going to offer a challenge rationalization 31 “Ethics is a luxury we can’t afford now.” If we follow the system of Kant (ethics absolutism, deontology) then 31 is indeed a rationalization we should never bring up. However if we reject ethics absolutism and do care about whether the consequences are acceptable (utilitarianism) then we may make use of 31 if a presumably ethical course of action leads to unacceptable consequences; hereby I consider the interests and wellbeing of myself and the group I belong to as a matter of proper ethical concern.