The Pacific Justice Institute is quite upset that the Obama administration decided to stop defending the Defense of Marriage Act in court and they’ve launched a crusade to punish career attorneys at the DOJ for daring to follow the instructions of their bosses. And they’ve got nearly everything about this wrong:
The United States Justice Department has the duty of defending lawsuits filed against the “United States” —against “We the People.” Like all other lawyers, the attorneys of the USDOJ owe their clients the duties of loyalty, confidentiality, and zealous representation.
No, they don’t have such a duty. The DOJ is unique among federal agencies in that it performs multiple roles simultaneously. Yes, it usually represents the federal government when it is sued, but it doesn’t have any legal obligation to do so. But as an executive agency, it also files briefs in cases on behalf of the president’s position in those cases. And there have been many cases in which the DOJ has chosen not to defend a law being challenged in court because the president thinks that law is unconstitutional. The Obama administration made that choice in regard to DOMA and now the law is being defended by the Bipartisan Legal Advisory Group, arranged by the House.
But the PJI is claiming that the DOJ attorneys, most of them careerists rather than political appointees, have violated ethics by “switching sides” in the case. And they’re filing complaints against every one of them with their bar associations in order to have them punished for it.
The Pacific Justice Institute is taking action to give the American people a voice in defense of DOMA. We are filing official complaints with the state bars and disciplinary boards of every jurisdiction where these government lawyers are licensed.
This scenario would be unthinkable in any other case. What these lawyers are essentially doing is leaving the table for the defendant, walking across the courtroom, and sitting down next to plaintiff’s counsel. The lawyers would be lucky not to get disbarred for flagrantly violating their duties of loyalty, confidentiality, and zealous representation. Yet, because it is the DOJ, and the client is the United States, they don’t believe the same rules apply to them. They think they can get away with this and no one will care.
But they’re right, the same rules do not apply here. This is not a criminal case and the government is not on trial. They’re pretending that “the United States” is a client being represented, but it’s not. They are representing the position of the executive branch, which is something the DOJ has to do every day. These complaints will be dismissed in a heartbeat when they’re filed, as they should be.