Given the state of the nation, it is very difficult to write anything about legal ethics that isn’t also about politics. So, I’m not even going to bother to try this week to come up with something that isn’t.
Among the parade of daily horrors to the rule of law happening in the last 3 weeks includes the news that Pam Bondi has been confirmed by the Senate to be the new Attorney General of the U.S. Now before we get into some of her very first actions in that role and why they are a problem, let me be clear that we are all likely better off that the Attorney General is her and not Trump’s first choice, Matt Gaetz.
We also might be better off that she has the role and not the person serving as the interim Attorney General. That gentleman, Edward Martin, managed to perform one of the most outrageous acts involving a conflict of interest that many of us have witnessed by a prosecutor. After taking office, Mr. Martin filed a motion to dismiss the criminal case against Jose Padilla on January 21, 2025. Mr. Padilla was one of many charged with criminal conduct relating to the January 6 insurrection. Mr. Martin, in that motion, indicated that the defendant, Mr. Padilla, was consenting to the dismissal. Of course, Mr. Padilla would consent, and Mr. Martin readily would know that because Mr. Martin was representing Mr. Padilla on that case. On January 21, Mr. Martin was still Mr. Padilla’s counsel of record. In fact, it was not until February 5, 2025. The conflict of interest involved in taking that action is so blatant and obvious that it would be disrespectful to my readers to feel the need to spell out the rules being violated. (For those disinclined to be easily disrespected, however, the rule is Rule 1.11(d).)
Now, those who are intimately familiar with that rule will be saying, but that conflict can be consented to by the appropriate government agency. True statement, but the application of that provision to the notion that the acting Attorney General of the U.S. could consent to their own conflict leaves a very sour taste in the mouth. (As a further bonus, it is worth noting that the Justice Department’s own guidelines seek to require a lawyer to refrain from any involvement in such prior cases for at least one year.)
And speaking of such things, the first actions of Attorney General Bondi indicate we are still in for a rough time. I have written in the past about the fact that the Attorney General of the U.S. is not, in fact, the President’s lawyer. Ms. Bondi, of course, like 6 or so billion other human beings, is not a reader of this blog. She surely did read the Supreme Court’s decision granting broad immunity to the President last year which seemed at the time to signal the death of an independent DOJ.
Very shortly after being confirmed, she issued a memorandum that changes long-standing policy allowing lawyers in the DOJ to decline to sign briefs in certain circumstances, states as follows:
When Department of Justice attorneys, for example, refuse to advance good-faith arguments by declining to appear in court or sign briefs, it undermines the constitutional order and deprives the President of the benefit of his lawyers. It is therefore the policy of the Department of Justice that any attorney who because of their personal political views or judgments declines to sign a brief or appear in court, refuses to advance good-faith arguments on behalf of the Administration, or otherwise delays or impedes the Department’s mission will be subject to discipline and potentially termination, consistent with applicable law.
The attorneys who work in the Justice Department, however, are not the President’s lawyers and, as discussed in my most recent post, many of the arguments being referred to are not being made in “good faith.”