Legal Ethics and the Rule of Law

The first months of the second Trump administration have brought dozens of executive orders that appear to contravene long-settled law, politicized pardons, politically motivated investigations and prosecutions, and threats to defy court orders, generating profound concerns for the rule of law in the United States. footnote1_pMHSZCFzLQn3U4aKWcIpWmRKAEObVHjqWVWmsKbmk_s2ULCdzA5HyA1 The White House has so far issued more than 181 executive orders, many of which appear to contravene long-settled law. High-level appointees at the Department of Justice (DOJ) have issued public threats against politicians and have been accused of making politically motivated decisions to initiate or drop investigations and prosecutions — leading to the public resignations of dozens of career prosecutors. Devlin Barrett, “Justice Dept. Opens Inquiry into Andrew Cuomo, Singling Out Another Political Target,” New York Times, May 20, 2025, https://www.nytimes.com/2025/05/20/us/politics/andrew-cuomo-investigation-doj.html; and Shayna Jacobs et al., “Justice Dept. Investigating N.Y. Attorney General Who Has Targeted Trump,” Washington Post, May 8, 2025, https://www.washingtonpost.com/national-security/2025/05/08/letitia-james-mortgage-investigation-trump-justice-fbi/. The administration has also launched retributive attacks against law firms, universities, and media companies based on dubious legal theories.  Ankush Khardori, “The Fallout Is Growing on Trump’s Deals With Law Firms,” Politico, July 10, 2025, https://www.politico.com/news/magazine/2025/07/10/trump-law-firms-deals-mess-column-00445259; Collin Binkley, “More Than 50 Universities Face Federal Investigations as Part of Trump’s Anti-DEI Campaign,” AP News, March 15, 2025, https://apnews.com/article/trump-dei-universities-investigated-f89dc9ec2a98897577ed0a6c446fae7b; and Jess Bidgood, “Trump Sharpens Attacks on a Favorite Foe: The News Media,” New York Times, July 21, 2025, https://www.nytimes.com/2025/07/21/us/politics/trump-news-media.html. Many of these actions have been enjoined by federal courts. In at least 57 cases since Trump retook office, plaintiffs have accused the administration of not complying with their directives, and judges have often agreed, although these questions are still being litigated. Justin Jouvenal, “Trump Officials Accused of Defying 1 in 3 Judges Who Ruled Against Him,” Washington Post, last updated July 21, 2025, https://www.washingtonpost.com/politics/2025/07/21/trump-court-orders-defy-noncompliance-marshals-judges/.  Practicing lawyers have played a central role in virtually all these controversies, leading many commentators to argue that they are failing to uphold the rules and standards governing the legal profession. footnote2_1qyfYAjsvuVSF6hvj06bPUawQXH4X5TATxbR6DzIkg_mw07MPxFMJ322 Some of these allegations have already resulted in disciplinary complaints. For instance, in July 2025 a legal watchdog group filed bar disciplinary complaints against three rank-and-file lawyers who have represented the Trump administration in court. Alan Feuer, “Legal Watchdog Files Bar Complaints Against Justice Dept. Lawyers,” New York Times, July 31, 2025, https://www.nytimes.com/2025/07/31/us/politics/justice-department-lawyers-complaint.html.  In many cases, lawyers are also among the most prominent opponents pushing back against the administration, including through litigation. The president, attorney general, and other prominent administration figures have suggested that it is not themselves but their opponents who are violating ethical rules. footnote3_QBhkVVqffwVduYyWoqI48i8xhL2IuUXlCzT90vcDwY_zelc9IcGUJAE3 Memorandum on Preventing Abuses of the Legal System and the Federal Court, DCPD-202500387, March 21, 2025, https://www.govinfo.gov/content/pkg/DCPD-202500387/pdf/DCPD-202500387.pdf; and Kyle Cheney and Josh Gerstein, “Trump Admin Escalates its War With the Courts — This Time Targeting Judge Boasberg,” Politico, July 28, 2025, https://www.politico.com/news/2025/07/28/james-boasberg-justice-department-complaint-00480938.

In this climate, it is essential not only for government lawyers but also for the broader legal profession and the general public to understand the rules, standards, and commitments governing the practice of law in the United States so that they can accurately judge both the administration’s actions and those of its opponents and hold all attorneys involved accountable when they fail to meet their ethical obligations.

Government lawyers have special responsibilities. The federal executive branch has immense power to shape the lives of individual Americans and the collective public through investigations, criminal prosecutions, civil litigation, and administrative actions. These powers have always been susceptible to abuse, spurring the creation of a range of internal checks within the executive branch to prevent the weaponization of government power, as well as informal norms against conduct by career prosecutors and others that could create even an appearance of — let alone actual — bias. footnote4_zIaptIb7ucNFZhKcBBS9YioVpagX4jM6iKqyneQQ_plE3AL1g9DUy4 Preet Bharara et al., Proposals for Reform: National Task Force on Rule of Law & Democracy, Brennan Center for Justice, October 2, 2018, https://www.brennancenter.org/our-work/policy-solutions/proposals-reform-national-task-force-rule-law-democracy.  But recent years have seen the erosion of these safeguards, which has accelerated in the first months of the second Trump administration with the firings of agency inspector generals and sidelining of other internal executive branch watchdogs. footnote5_8LGMCr8cMScPjXNEVX1MISITF82TiW-LCtiKx8MgBjM_uzPvN0oFNXQK5 Even before the current administration took office, political appointees had meddled in specific law enforcement cases with growing frequency. Bharara et al., Proposals for Reform, 18. Promises to pursue civil or criminal charges against political opponents have become normalized in political debates. See Nick Gass, “‘Lock Her Up’ Chants Rules Republican Convention,” Politico, July 19, 2016, https://www.politico.com/story/2016/07/rnc-2016-lock-her-up-chant-hillary-clinton-225916; Darren Samuelsohn, “Dems Taunt Trump with Threats of Prison Time,” Politico, June 18, 2019, https://www.politico.com/story/2019/06/18/democrats-trump-prosecute-2020–1366755; and Robert Downen and William Melhado, “Trump Vows Retribution at Waco Rally: ‘I Am Your Warrior, I Am Your Justice,’” Texas Tribune, March 25, 2023, https://www.texastribune.org/2023/03/25/donald-trump-waco-rally-retribution-justice/. Threats of criminal prosecution have also become a concerning feature of policy debates in some areas. See Eric Petry and Daniel I. Weiner, “Project 2025 Would Fuel the Assault on Election Officials,” Brennan Center for Justice, August 16, 2024, https://www.brennancenter.org/our-work/research-reports/project-2025-would-fuel-assault-election-officials. Meanwhile, charges of weaponization have become a rhetorical shield even when there is enough evidence of wrongdoing to warrant the government’s pursuit of civil or criminal liability.  See, e.g., Siladitya Ray, “Trump Allies Accuse Biden of ‘Weaponizing’ DOJ After His Indictment in Classified Documents Case,” Forbes, June 9, 2023, https://www.forbes.com/sites/siladityaray/2023/06/09/trump-allies-accuse-biden-of-weaponizing-doj-after-his-indictment-in-classified-documents-case/l. The first line of defense against misconduct by federal government lawyers has traditionally consisted of internal executive branch bodies, but it is doubtful that they will be able to effectively deter abuse in the current environment.

This does not mean that guardrails are entirely absent, however. The law is a self-governing profession. All practicing lawyers, including government lawyers, are bound by a variety of rules and standards enforced by state and federal courts, bar authorities, and the broader profession. The erosion of both formal checks and informal constraints on abuse of power in the executive branch has cast a spotlight on the question of what conduct these rules and standards do and do not proscribe.

To help answer this question, we have consulted with dozens of legal ethics experts and practitioners, and our conclusions reflect their input.

Broadly speaking, the most relevant constraints found in constitutional and statutory law, court rules, codes of professional conduct, and long-standing policy guidance from DOJ and other agencies can be distilled into at least six broad principles:

• Dishonesty is prohibited. Criminal and civil law and rules of professional responsibility and court procedure strictly prohibit dishonesty to courts, clients, other participants in legal proceedings, and in some cases even the general public. Dishonesty can include both affirmative misrepresentations and omissions of relevant facts. Abuses of power, including politicized or partisan prosecutions, will often necessitate some form of dishonesty, which would be the basis for an actual rule violation.
• Defiance of court orders is prohibited. Overtly disobeying or encouraging a client to disobey a court order violates multiple disciplinary rules and could subject an attorney to legal sanctions or a finding of criminal contempt.
• Criminal investigations, prosecutions, and lawsuits must have some good-faith, credible basis in law and fact. Bringing criminal proceedings without probable cause or pursuing frivolous civil actions that lack a cognizable basis in either fact or law violates numerous rules. Particularly in civil cases, however, the bar for formal sanctions is high. The fact that a civil claim, particularly one brought by a private party, is novel in some respect generally does not establish a sanctionable violation.
• Law enforcement cannot be used to harass, intimidate, or exact political retribution or as leverage to achieve unrelated political goals. Pursuing even nonfrivolous investigations or prosecutions primarily to harass or intimidate targets or as a form of political leverage violates numerous agency policies and other long-accepted ethical standards for government lawyers. It also potentially violates specific disciplinary rules in certain jurisdictions.
• Conflicts of interest and similar misuses of office are generally prohibited. All lawyers must adhere to attorney conflict rules. These rules include restrictions on concurrent representation of a client who is directly adverse to another client, “switching sides” between two clients in a particular matter or a set of related matters, and representing a client whose interests are materially adverse to a former client in the same or a substantially related matter (proscribing government lawyers from participating in official matters that they previously worked on outside of government). These rules can generally be waived if both the former and current clients explicitly agree (for waiver purposes, a government attorney’s “client” is usually the agency that employs the attorney). Government lawyers are also subject to various ethical rules for federal employees, including gift restrictions, criminal prohibition on participating in a specific matter in which they have a financial interest, and other constraints. Most of these restrictions cannot be waived.
• Lawyers are responsible for their own conduct and that of supervisees. Every practicing lawyer is required to obey rules of professional conduct and other ethical standards. Line prosecutors and other subordinate government lawyers generally cannot evade responsibility for ethical violations on the grounds that they were following a supervisor’s directives. Moreover, supervisors can be held responsible for directing unethical conduct by the lawyers whose work they oversee.

Importantly, violations of the rules described above can carry serious formal consequences, including monetary sanctions, temporary or permanent loss of the right to practice law, and public rebukes from courts and bar authorities that go on a lawyer’s permanent record. Some conduct that violates legal ethics rules may also be illegal and give rise to criminal or civil charges. But compliance with the core ethical standards and commitments matters regardless of whether the lawyers involved face any type of formal sanction. These standards are an important metric by which members of the legal profession can judge government lawyers’ conduct and by which all Americans can judge the administration’s actions. At stake is the future of the profession and the long-term health of American democracy.

The rules, standards, and commitments federal government lawyers follow come from a variety of sources, including state rules of professional conduct for lawyers, court rules, agency policies and practices, and of course the Constitution and federal statutes and regulations.

Rules of Professional Conduct

For more than a century, the law has been one of the most highly regulated American professions. Each state and territory has its own code of professional conduct established by its courts, which also retain ultimate enforcement authority (although most state courts have delegated to state boards and bar associations some authority to investigate and adjudicate allegations of professional misconduct). Congress has expressly provided, via the McDade-Murtha Amendment, 28 U.S.C. 530B, that federal government lawyers are subject to the ethics rules of the states or territories in which they practice. footnote1_qiJROaYhLhN9z845z5Z7AFvZQrGD54dT0yCJPCsy0_w4iARZvMn7nS1 28 U.S.C. § 530B.

These rules vary across jurisdictions on the basis of local needs and practices, but they have many common elements. Nearly every state has adopted a version of the Model Rules of Professional Conduct (Model Rules) drafted by the American Bar Association (ABA). The ABA Model Rules thus provide a useful overview of existing state rules and commentary to clarify these rules for practicing lawyers, although they do not themselves carry the force of law.

While many rules of professional conduct address topics more specific to lawyers in private practice — including client confidentiality, fiduciary responsibilities, and general malpractice — others are broadly applicable to all lawyers, including government lawyers. These include stringent honesty and integrity requirements, restrictions on conflicts of interest, minimum standards of competence and respect for governing law, and standards for professional accountability to clients, opposing counsel, and the public. Certain jurisdictions, including the District of Columbia and New York State, also have specific rules for government lawyers, especially prosecutors, as discussed below.

Court Rules

Federal government lawyers must also obey civil and criminal rules of procedure in federal court. For example, in federal civil proceedings, both government and private lawyers are bound by Rule 11 of the Federal Rules of Civil Procedure (FRCP). footnote2_Lm4lwVlyL6EZbMf0psFby9fmZjxWWruW3o9eRNLqPA_ey09c5queSM52 Fed. R. Civ. P. 11.  This rule governs the signing of pleadings, motions, and other papers presented to the court. It is designed to ensure that all filings are made in good faith, and it imposes certain responsibilities on attorneys and unrepresented parties to ensure that their submissions are not frivolous, legally unsound, or intended to harass or delay.

Although the Federal Rules of Criminal Procedure do not have a direct equivalent to Rule 11, there are directives that serve adjacent purposes, such as Rule 4, which requires that a complaint or supporting affidavit show probable cause to a federal magistrate judge. footnote3_6yF-qY0d19oB3Gles0Mjr4J-G0rMJYtftoeV1COk9o_kxdgyRYKVWbp3 Fed. R. Crim. P. 4.  A showing of probable cause is also a prerequisite to the issuance of a warrant or summons. This evidentiary threshold, grounded in the Fourth Amendment, is intended to deter baseless prosecutions. Rule 48(a), which allows the government to drop charges only with a judge’s consent (referred to as “leave of court”), has also been understood to protect a defendant against prosecutorial harassment and serve as a check on a prosecutor’s discretion. footnote4_tJnF-7qMqSMtxob1vbZWy23kMQga8oPyReGcN-leiRg_zQJTWY3EJNj74 See, e.g., United States v. Greater Blouse, Skirt & Neckwear Contractors Ass’n, 228 F. Supp. 483, 486 (S.D.N.Y. 1964).

Agency Policies

DOJ and other agencies have adopted additional ethics guardrails through internal policies and long-standing norms that apply to their lawyers. DOJ prosecutors, for example, are governed by the Justice Manual, a comprehensive collection of policies and norms compiled by the department’s Executive Office for U.S. Attorneys. footnote5_qY0qSPPb4NjsyYK055qb6Mvxn0uhwq9LlkkZvGj3LM8_jyHeZFPz2iwT5 U.S. Department of Justice, Justice Manual (JM), 2015, https://www.justice.gov/jm/justice-manual.  This manual was designed in part to ensure compliance with other ethics rules, but it also places additional obligations on federal prosecutors. footnote6_wvPGwwYWD0J1GrDzsKqcG4EDxbum7oGQk854usVQVI_aY3ypNCDEhid6 JM 9–27.100.  For instance, the Justice Manual requires federal prosecutors to initiate prosecutions only if there is a substantial federal interest and evidence that would likely result in conviction, and it prohibits prosecutors from initiating legal actions to further political or personal interest. DOJ rules also prohibit staff from engaging in matters involving individuals with whom they have a personal or political relationship. Many lawyers at other agencies, such as the military’s Judge Advocate General’s Corps, are governed by similar rules. footnote7_tRIeSmFsCUV7o4caLNVoQAH5VY3wnCpdvDR5aQVN8_tDUeb97jtLT67 See, e.g., Army Regulation 27–26, Legal Services — Rules of Professional Conduct for Lawyers, 2018, https://tripler.tricare.mil/Portals/138/ARN3662_R27_26_FINAL%20%281%29.pdf; and JAG Instruction 5803.1E, Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General, 2015, https://www.pendleton.marines.mil/Portals/98/Docs/Western%20Judicial%20Circuit/JAGINST_5803_1E_Rules_for_Professional_Conduct.pdf.

Constitutional and Statutory Law

Government lawyers must, of course, also obey all governing constitutional and statutory law. Typically these rules relate to a lawyer’s official, not personal, conduct, but there are notable exceptions. For instance, some constitutional violations — such as withholding exculpatory evidence in violation of a defendant’s due process rights — can also result in a prosecutor violating the ethical obligation to deal honestly with opposing parties, as discussed below. And certain statutes — notably conflict-of-interest restrictions and other ethics statutes for federal employees — expressly regulate government lawyers’ personal conduct in their positions.

The rules and standards governing the legal profession constrain in important ways the ability of lawyers in the federal government to use its vast power to improperly target political enemies, to reward friends, or to restrict the administration’s opponents in the legal tactics they use against it. Six major sources of misconduct give rise to key restraints on government lawyers.

Dishonesty

One of the issues raised frequently by critics of the current administration — and the administration itself — is dishonesty. Being untruthful in legal proceedings or in public discussions of legal matters is a common basis for attorney discipline in the United States. Many of the unethical legal actions feared by the administration’s critics, such as aggressive prosecution of political opponents, would likely necessitate making misrepresentations to judges, opposing counsel, criminal and civil enforcement targets, and the broader public. The administration itself has also leveled charges of dishonesty against members of the private bar. footnote1_SQ8dl7Kvn-YRzoqVv9W2le15ftndYc1l3Jnwc0NUSE_uQbE2soiSQr31 “Addressing Risks from Perkins Coie LLP,” Exec. Order No. 14230, 90 Fed. Reg. 11781 (March 11, 2025), https://www.govinfo.gov/content/pkg/FR-2025–03–11/pdf/2025–03989.pdf.

Dishonest conduct has been a central part of many legal scandals over the past 50 years. President Richard Nixon’s attorney general, John Mitchell, was disbarred and sent to prison for his role in the Watergate cover-up. footnote2_exFGpQSZYMN6btLSkyyLyjIPkOIqqLHmeM42dtPk7qU_qMceVBabqLP82New York Times, “John N. Mitchell Dies at 75; Major Figure in Watergate,” November 10, 1988, https://www.nytimes.com/1988/11/10/obituaries/john-n-mitchell-dies-at-75-major-figure-in-watergate.html.  President Bill Clinton agreed to surrender his law license for misrepresentations he made to Whitewater investigators. footnote3_PPwdFaYIdGClx805oBmYnAqsjbmruUb048-LY6dCCFI_lq4dVBDKKlRp3 Duncan Campbell, “Lewinsky Scandal Ends as Clinton Is Disbarred,” Guardian, October 1, 2001, https://www.theguardian.com/world/2001/oct/02/duncancampbell.  And multiple senior officials in the George W. Bush administration had their government careers cut short for misrepresentations to Congress and other administration officials in the scandal that arose over the firings of nine U.S. attorneys in 2006. footnote4_L2l8L0e15yu4xglDclMN-JA11dDmCWtDm75xqZk-u14_s2rbFdDW5K0C4 Office of the Inspector General (OIG), “Conclusions,” chapter 13 in Special Report: An Investigation into the Removal of Nine U.S. Attorneys in 2006, September 2008, https://oig.justice.gov/sites/default/files/archive/special/s0809a/chapter13.htm.

Dishonesty falls squarely under multiple disciplinary rules that have been adopted across jurisdictions. For instance, ABA Model Rule 3.3(a) prohibits lawyers from making false statements to a court, failing to correct a material false statement, or offering evidence that the lawyer knows to be false. footnote5_FnjwKaHXTrxtgiX-C0I93hIMndCMmGh8UB6puo9bjQQ_jj9ih1ufu2fS5 ABA Model Rules of Professional Conduct, R. 3.3, https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_3_candor_toward_the_tribunal/.  Similarly, ABA Model Rule 8.4(c) prohibits lawyers from “engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation.” footnote6_BIlixMuyeylx2-SArcpb4rkJVYBndieuzblQnwS9cjI_kVJyWCSN5Gmo6 D.C. Rules of Professional Conduct, R. 8.4, https://www.dcbar.org/For-Lawyers/Legal-Ethics/Rules-of-Professional-Conduct/Maintaining-the-Integrity-of-the-Profession/Misconduct.  And Model Rule 8.2(a) prohibits lawyers from making false statements concerning the qualifications or integrity of a judge or public legal officer. footnote7_IWqN6klMjpQMTk0JJkFWMIR4ykfJMx47MDSeXkyg9o_jCL42ySVBUSk7 ABA Model Rules of Professional Conduct, R. 8.2, https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_2_judicial_legal_officials/.  Many states and Washington, DC, have adopted similar rules. footnote8_FsnjfYDkJVHrZpIFV2z4tJLDXMPJOiiBzpROOfqzTqY_qXNzIqrqpbyL8 D.C. Rules of Professional Conduct, R. 3.3, https://www.dcbar.org/For-Lawyers/Legal-Ethics/Rules-of-Professional-Conduct/Advocate/Candor-to-Tribunal.  The ABA Model Rules and most states also generally prohibit lawyers from engaging in “conduct that is prejudicial to the administration of justice,” which can often be the practical result of a lawyer’s dishonesty in connection with any legal proceeding. footnote9_1N6kBWWLDKXSxlwebmQlo1R07-moIAHmytTsmuIUTA_of8yT8n1zZ219 ABA, Variations of the ABA Model Rules of Professional Conduct, R. 8.4, June 2024, https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/mrpc-8–4.pdf. See, e.g., Craig Butler, No.22-BD-003 (D.C. April 10, 2024), https://dcbar.org/Attorney-Discipline/Disciplinary-Decisions/Disciplinary-Case?docketno=22-BD-003.

The Federal Rules of Civil and Criminal Procedure reinforce lawyers’ duty of honesty. Rule 11, for instance, imposes a duty of candor that “means more than just not lying,” but also “steering clear of ‘half-truths, inconsistencies, mischaracterizations, exaggerations, omissions, evasions, and failures to correct known misimpressions created by [the lawyers’] own conduct.’” footnote10_EfFeFCkuXRH4g0JuGGk2PHcSMZ6hoSBLrMd3GCRLGhM_iZEwy1ULxfv410Wharton v. Superintendent Graterford SCI, 95 F.4th 140, 148 (3d Cir. 2024).

In criminal proceedings, prosecutors generally have a heightened duty of candor. footnote11_7rprMqC-Y7L7aQQLmC5T1OH55OHXXCTrI8PTVw6uzEw_a2onDGG9izHs11 ABA Criminal Justice Standards for the Prosecution Function, Standard 3–1.4, https://www.americanbar.org/groups/criminal_justice/resources/standards/prosecution-function/#:~:text=Standard%203%2D1.4%20The%20Prosecutor’s%20Heightened%20Duty%20of%20Candor,-(a)%20In%20light&text=(b)%20The%20prosecutor%20should%20not,for%20lawfully%20authorized%20investigative%20purposes. See also Berger v. United States, 295 U.S. 78 (1935).  They must repeatedly certify that they have probable cause, and they also have significant duties of transparency, including giving defendants access to evidence they plan to use at trial. footnote12_-xbXzckKPdMt5CalBg2-cOmFjYZft-R-1CKQOHsPiTs_qbIGtkqUY0N312 Fed. R. Civ. P. 16.  Prosecutors also have constitutional obligations to disclose exculpatory evidence that may prove a defendant’s innocence or discredit the witnesses against the defendant. footnote13_S1kbsZc3LxBkOYTNQMMLayzhwW4InPUi5-il4Vx0lo_oHEA9B3xK1Ir13Brady v. Maryland, 373 U.S. 83 (1963); and Giglio v. United States, 405 U.S. 150 (1972).

One of the biggest legal scandals involving a federal prosecution in recent decades was brought to light when career prosecutors were found to have “intentionally withheld” favorable evidence from lawyers for former Alaska Republican Sen. Ted Stevens, who was convicted of corruption in 2008. footnote14_j-UaYV6QDZfzEiYh3XkPPG78hP7tq9ktm7h-yR91Q_rg7TsKjFrpJH14 Mark Memmott, “Report Slams Sen. Stevens’ Prosecutors,” NPR, March 15, 2012, https://www.npr.org/sections/thetwo-way/2012/03/15/148668283/report-slams-sen-stevens-prosecutors.  Stevens’s conviction was overturned, and in early 2009 DOJ decided not to seek a new trial. After a subsequent investigation, some of the lawyers involved were held in contempt of court and later suspended.

Importantly, many of the rules and standards requiring lawyers to behave honestly apply outside formal legal proceedings. While exaggerations, half-truths, and even outright lies have become common in political discourse, lawyers have heightened obligations even when they are not in a courtroom or otherwise directly involved in a legal proceeding. Disciplinary authorities in Washington, DC, for instance, have found lawyers in violation of professional rules for knowingly drafting an inaccurate DOJ response to a media inquiry and for proposing to colleagues that DOJ make inaccurate representations to a state legislature. footnote15_1ZhtcrJSAbDowPOcaL1cotm9hOcGLHHrqmyMeOH-SE_yp4L3cSGmBYl15John A Nowacki, No. 2008-D339 (D.C. July 23, 2009), https://www.dcbar.org/Attorney-Discipline/Disciplinary-Decisions/Disciplinary-Case?docketno=2008-D339; and D.C. Board on Professional Responsibility, Report and Recommendation of Hearing Committee Number Twelve, August 1, 2024, https://statesunited.org/wp-content/uploads/2024/08/2024–08–01-issuance-letter-and-report-and-recommendation-of-hearing-committee-number-twelve.pdf.

Some of the most egregious recent cases of dishonesty arose from efforts to overturn the result of the 2020 presidential election. In 2024, for instance, a hearing committee of the Washington, DC, bar found that former Acting Assistant Attorney General Jeffrey Clark violated professional conduct rules by sending Georgia officials a letter containing “significant false and misleading statements” about the integrity of the 2020 election in that state, which he falsely claimed DOJ was investigating. footnote16_4AcmlTxIZ5twthoCfR1ZfTsn52FlPpD8QhRgRhPHeF4_dlD0wwqp8Gix16 D.C. Board on Professional Responsibility, Report and Recommendation of Hearing Committee Number Twelve. In July 2025, the District of Columbia Board on Professional Responsibility recommended Clark’s disbarment. footnote17_h9H4RXfcbPwuPkLGfV7ElqHRApEsE0kIznWlexg66tI_ql9Pfh9I5OEI17 D.C. Board on Professional Responsibility, Report and Recommendation of the Board on Professional Responsibility, July 31, 2025, https://fingfx.thomsonreuters.com/gfx/legaldocs/lbpgzlqzqvq/DC%20Board%20report%20-%20Jeff%20Clark.pdf.

Several other lawyers also faced sanctions in connection with the aftermath of the 2020 election. Trump’s personal lawyer Rudy Giuliani was disbarred in New York State and later in Washington, DC, for making false statements, including defamatory claims about election workers. footnote18_mxKQ2CLEHOnpDS6P976NMZeYFxgVTTPmzOsFFj2g_cOejtYNSPAAF18 Rebecca Falconer, “Giuliani Satisfies Judgment in Georgia Election Workers’ Defamation Case,” Axios, February 24, 2025, https://www.axios.com/2025/02/25/giuliani-satisfies-georgia-election-workers-defamation-case; and Guiliani, 197 A.D.3d.1 (2021).  Jenna Ellis, a campaign attorney for the president, was suspended from practicing law in Colorado for three years for making false statements about the election result in Georgia. footnote19_dTCVCpH7l2P-uWnSRYHXUrViJmLYa1qFY4NNk64J-VA_m5DOB85CGAQg19The People of the State of Colorado v. Jenna Lynn Ellis, 526 P.3d 958 (Co. 2023).  The State Bar Court of California recently affirmed a state judge’s recommended disbarment of John Eastman, another attorney for Trump, for misrepresenting various legal and factual issues related to certification of the presidential election. footnote20_DfArAssVL8C0f1GFl7lkSeptEYyT8fUOVEq6OEmL2Q_fihzH6QmnViX20 Notice of Disciplinary Charges, John Charles Eastman, No. SBC-23-O-30029 (Ca. March 27, 2024), https://statesunited.org/wp-content/uploads/2024/03/Eastman-Decision.pdf.  And Michael Gabelman, a former Wisconsin Supreme Court justice, recently agreed to a three-year suspension of his law license in connection with false statements and omissions he made during his investigation of the 2020 election result in Wisconsin. footnote21_aMbVWQuI6N-3L7blG83w9IdCjMb2dmeI1seyOdMeuY8_tvhAPVFrpSdF21 Henry Redman, “Gabelman’s Law License Suspended for Three Years,” Wisconsin Examiner, April 7, 2025, https://wisconsinexaminer.com/briefs/gablemans-law-license-suspended-for-three-years/.

Some of these individuals faced not only professional consequences but criminal and civil liability as well. For instance, Giuliani was ordered to pay $148 million in damages for defaming two Georgia poll workers. footnote22_VTsBdw0UT7Tsit9dzthfdmX8bGTeX9Imsocbx7IxYE_gWen2z8xDubk22 Eileen Sullivan, “Jury Orders Giuliani to Pay $148 Million to Election Workers He Defamed,” New York Times, December 15, 2023, https://www.nytimes.com/2023/12/15/us/politics/rudy-giuliani-defamation-trial-damages.html.  Ellis pled guilty to aiding and abetting false statements in writing. And Kenneth Chesebro (a lawyer who allegedly helped organize an effort to submit false slates of electors from key states) pled guilty to conspiracy to commit filing false documents, after an investigation in Fulton County, Georgia, into election interference. footnote23_ilk1GqHT97SdzO181jXU8-JkbypROwtKGq6LF6WAl8_m5YWge03pjkt23 Tamar Hallerman and David Wicker, “Disavowing Trump, a Tearful Jenna Ellis Pleads Guilty in Fulton Election Probe,” AJC Politics, October 24, 2023, https://www.ajc.com/politics/fourth-defendant-negotiates-plea-deal-with-fulton-prosecutors/S3SO4MZ3MBGCJD6YD47ZE4MYQE/.

It is important to note that not every untruth told by a lawyer will constitute an ethical or legal violation. Inadvertent mistakes typically do not breach any ethical rule; in many jurisdictions this extends even to mistakes that result from negligence. footnote24_3tP-H7dDhbSbtAV-1VrJDexcyacuTWV5R5zfk8NFpXA_j4lXM2iQhL9t24 For instance, the D.C. Board on Professional Responsibility will find a violation of its dishonesty-related rules only where a lawyer knowingly made a false statement of material fact or law; inadvertent misstatements, even negligent ones, do not constitute an ethical violation. D.C. Rules of Professional Conduct, R. 4.1, https://www.dcbar.org/for-lawyers/legal-ethics/rules-of-professional-conduct/transactions-with-persons-other-than-clients/truthfulness-in-statements-to-others#:~:text=(b)%20Fail%20to%20disclose%20a,is%20prohibited%20by%20Rule%201.6.  Misstatements that are immaterial to a legal matter also generally are not covered. footnote25_33KF4GVPYDYJ-FXkH18No67eY5cg1gGhSELsMl6LbY_dh3CMH9Wzgic25 D.C. Rules of Professional Conduct, R. 4.1 (Comment), https://www.dcbar.org/for-lawyers/legal-ethics/rules-of-professional-conduct/transactions-with-persons-other-than-clients/truthfulness-in-statements-to-others#:~:text=(b)%20Fail%20to%20disclose%20a,is%20prohibited%20by%20Rule%201.6 (clarifying that dishonesty violations occur only in relation to material statements of fact); and Texas Disciplinary Rules of Professional Conduct, R. 4.01 (Comment), https://www.legalethicstexas.com/resources/rules/texas-disciplinary-rules-of-professional-conduct/truthfulness-in-statements-to-others/#:~:text=Generally%2C%20in%20the%20course%20of,procedure%2C%20such%20as%20formal%20discovery (same).  But if an attorney intentionally or recklessly attempts to deceive a court, an opposing party, or even the general public in connection with a legal matter, this will often constitute a serious ethical violation.

Defying Court Orders

Direct defiance of court orders is another clear-cut basis for sanctions or other disciplinary action — one that has become increasingly relevant in litigation over the administration’s use of novel legal arguments to deport immigrants residing in the United States. footnote26_MrbhchA6NmhsSjaUBDxR0VYgIMYC4iwUCbsk6pt5mo_fPMzs9Ex2vCK26 On March 15, 2025, for example, Judge James Boasberg of the U.S. District Court for the District of Columbia issued a ruling halting a series of flights deporting more than 200 Venezuelan migrants suspected of gang affiliations. In spite of the order to turn the planes around and Judge Boasberg’s directive that “this is something that [the Trump Administration] need[s] to make sure is complied with immediately,” the administration continued to fly the individuals to a “terrorist confinement center” in El Salvador. NPR Washington Desk, “Judge Seeks Sworn Declaration from Justice Department in Deportation Case,” March 17, 2025, https://www.npr.org/2025/03/17/nx-s1–5331300/trump-alien-enemies-act-tren-de-aragua-deportation. In April, Judge Boasberg ordered contempt court proceedings, but an appeals court paused the process. Josh Gerstein and Kyle Cheney, “Judge Rules Trump’s Deportations to El Salvador Under Alien Enemies Act Were Illegal,” Politico, June 4, 2025, https://www.politico.com/news/2025/06/04/alien-enemies-act-deportations-ruling-00387625.

Defiance of court orders is expressly prohibited by numerous ethical rules. ABA Model Rule 3.4(c), adopted in most jurisdictions, states that a lawyer “shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.” footnote27_ezy4tNUrcPiX9gjm0Vlr7GUZoiktJxFqJBAxewOxM_zUdCrtGBA2T327 ABA Model Rules of Professional Conduct, R. 3.4, https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_4_fairness_to_opposing_party_counsel/.  Federal courts have clarified that, under this rule, a lawyer acting on behalf of himself or a client may disregard a court order only if it is invalid on its face. footnote28_yUSB-yupApSdKNvS6InLAIQhmIDsAPITnKW-H8TDizM_peMdiQSPX3Jb28 See, e.g., Saipan Lau Lau Dev. v. Superior Court of the Commonwealth of the N. Mariana Islands, 6 N. Mar. I. 191, 207 (2001).  The U.S. Supreme Court has held that counseling a client to disobey a court order is itself a violation of Rule 3.4(c). footnote29_2zOPn4SVZ9j6bl0ng-TPtSKsYBSR8ZQZsgM40Kh7upA_uzWDG3a2jPZR29Maness v. Meyers, 419 U.S. 449, 459 (1975).  Numerous other ethical rules also potentially apply. footnote30_a2Y4ub31jhnk8rhffMc8TqftR9flW8oNkfXMRMDic_de3eSStUcbHZ30 For instance, ABA Model Rule 8.4(d) provides that “it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.” Willfully disobeying or flouting a court order is included among conduct prejudicial to the administration of justice. See, e.g., In re Mayrand, 723 N.W.2d 261, 267 (Minn. 2006). ABA Model Rules 3.5(d) and 8.4(b) similarly prevent lawyers from disobeying the court. Under Rule 3.5(d), an attorney may not engage in conduct intended to disrupt a tribunal, which might include disobedience. See, e.g., In re Frauenshuh, 2023 SD 18, 989 N.W.2d 541, 550 (2023).

Rule 6.2 of the ABA Standards for Imposing Lawyer Sanctions, regarding abuse of the legal process, directly addresses the punishment for an attorney’s failure to obey an obligation under the rules of a tribunal. Rule 6.21 in particular provides that disbarment is appropriate when a lawyer knowingly violates a court order or rule with the intent to benefit himself or another and causes serious or potentially serious injury to a party or legal proceeding. footnote31_BsyjqInXjl3FUXY18DPRUo5GtIkCvVodPtjflhF3EVw_t5ftAceFk6JT31 ABA Standards for Imposing Lawyer Sanctions § 6.21.

Outside of professional conduct rules, judges have relatively broad power to sanction noncompliance with their orders through civil or criminal contempt holdings. A person may be held in contempt of court, and thereby fined, imprisoned, or both, for failure to comply with a court order. footnote32_4-kw6FXKZ90tAO4yFCatVCUoUgDq6ebV5ziZtI3Gzc_hnngGZLr1JZN32 18 U.S.C. § 401.  In a notable instance under the Clinton administration, the U.S. Court of Appeals for the District of Columbia Circuit held the secretaries of the treasury and interior, Robert Rubin and Bruce Babbitt, in contempt of court for refusing to produce documents related to the federal government’s mismanagement of nearly $4 billion in Native American trusts. footnote33_GbvPZ40LySHYkwQDeVctBLyCWFyxk6YWSVF41jH-mxk_bHjAeFFRNWfY33Cobell v. Babbitt, 37 F.Supp. 2d 6 (D.D.C. 1999).  The court directed the Department of the Interior to set up an accounting project to locate and manage the lost funds, which it did; the court also noted that it had the power to impose criminal sanctions but ultimately declined to do so. footnote34_sG4BgZ5AIN-q4sjIHuC4gaw1mvzUdI1hDQbTenWBA_eGC9x1fXtumW34Cobell v. Norton, 334 F.3d 1128, (D.C. Cir. 2003).  Noncompliance with court orders has, however, resulted in criminal and civil liability for various lower-ranking government officials over the years. footnote35_p6HwaM6py5YqAZ-Ou3RHPSTgngsBkkqCpzhedF3bU70_nVW4D3Vr18T135 Yasmin Abusaif and Douglas Keith, “What Courts Can Do If the Trump Administration Defies Court Orders,” Brennan Center for Justice, February 14, 2025, https://www.brennancenter.org/our-work/research-reports/what-courts-can-do-if-trump-administration-defies-court-orders.

Legally or Factually Baseless Prosecutions and Lawsuits

Another core concern arising from statements and actions by key administration officials is the potential for baseless criminal prosecutions and other enforcement actions. Meanwhile, the administration itself has charged that many of the lawsuits opponents have filed against its early executive actions are themselves “baseless” and “partisan”; it has pledged to aggressively seek sanctions and refer attorneys in the private bar to disciplinary authorities. footnote36_V8OEHe0saD7CycXzFGuFbY-Vrdyk1v-WORfTEscyZrI_nThyhqEn5Kag36 Memorandum on Preventing Abuses of the Legal System and the Federal Court, DCPD-202500387, March 21, 2025, https://www.govinfo.gov/content/pkg/DCPD-202500387/pdf/DCPD-202500387.pdf.  Were either government or private attorneys to bring truly frivolous legal proceedings, they would run afoul of a number of rules of procedure and attorney ethics rules.

The core rule governing frivolous and vexatious civil litigation in federal court is Rule 11 of the FRCP. Rule 11 requires all lawyers bringing federal civil cases, including those representing the government, to certify that all claims and other legal contentions they have presented are “warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.” footnote37_Lm4lwVlyL6EZbMf0psFby9fmZjxWWruW3o9eRNLqPA_yJBGpPjaXdcY37 Fed. R. Civ. P. 11.  As the Supreme Court has explained, “Rule 11 imposes a duty on attorneys to certify that they have conducted a reasonable inquiry and have determined that any papers filed with the court are well grounded in fact, legally tenable, and ‘not interposed for any improper purpose.’ ” footnote38_8YmN1vzrXxb7gGigTkqThMfbeSFPcKUfT55bSFJLPt8_eR3LdIck2Ozk38Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990).

Rule 11’s “central goal” is “deterrence,” with serious violations incurring significant sanctions. footnote39_b6h6eBmO7pmG-UxJCWAxRVH9HDyeLC75yJUISLJdn5Y_sLrDXwnwlRxE39Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990). See, e.g., Opinion and Order, King v. Whitmer, No. 2:20-cv-13134-LVP-RSW (E.D. Mich. Aug. 2021), https://storage.courtlistener.com/recap/gov.uscourts.mied.350905/gov.uscourts.mied.350905.172.0_3.pdf; and Trump v. Clinton, 653 F. Supp. 3d 1198, 1209 (S.D. Fla. 2023), appeal dismissed, No. 23–10536-J, 2023 WL 3477967 (11th Cir. Apr. 6, 2023).  But the bar for sanctions under Rule 11 is relatively high. The fact that a claim or argument is novel or even relatively unlikely to succeed generally is not sufficient for it to be sanctionable. footnote40_cqvX2h2FshZe-fygKQ1r7aFWX36sDPCH5uEeCh5n61E_rn69EzUDSzDw40 See Baker v. Alderman, 158 F.3d 516, 524 (11th Cir. 1998) (“The purpose of Rule 11 is . . . not to deter novel legal arguments or cases of first impression.”). See also Fed. R. Civ. P. 11 (Advisory Committee Notes) (“[Rule 11] is not intended to chill an attorney’s enthusiasm or creativity in pursuing factual or legal theories.”).  And bringing novel or long-shot claims generally does not give rise to a legal or ethical violation as long as those claims have some cognizable basis in law and fact.

State ethics codes reinforce the principle that all claims and arguments brought in court must be grounded in law. As ABA Model Rule 3.1 puts it, they must have “a basis in law and fact . . . that is not frivolous.” For novel cases, lawyers must be able to make “a good faith argument for an extension, modification or reversal of existing law.” footnote41_0ByrmEhdGsyYCftu1J9YL-oME2PJwkQedrcuN-SfWto_wWTxxGEqeWdE41 ABA Model Rules of Professional Conduct, R. 3.1, https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_1_meritorious_claims_contentions/.  Most states and Washington, DC, have adopted some version of Rule 3.1. footnote42_OVFlmWL-2gqbikNZvU4NeGjWq7QFumlCuRl6TnWLEk0_lEC7o9hjnaN142 American Bar Association, “Jurisdictional Rules Comparison Charts,” accessed May 7, 2025, https://www.americanbar.org/groups/professional_responsibility/policy/rule_charts/. See, e.g., D.C. Rules of Professional Conduct, R. 3.1, https://www.dcbar.org/For-Lawyers/Legal-Ethics/Rules-of-Professional-Conduct/Advocate/Meritorious-Claims-and-Contentions.

Criminal prosecutions, like civil actions, must have a basis in both law and fact, and the bar is significantly higher than in civil cases. Specifically, the Federal Rules of Criminal Procedure establish processes to ensure that prosecutors have established the constitutionally required “probable cause” that a crime was committed before taking significant actions in a case, such as seeking an arrest warrant from a judge, having assets frozen, or filing an indictment. footnote43_TeBEoXCRqAdj0HYUqNdqJITRf-5QtAHP9qWgSG8sLWc_q8cpZwLHt6Rr43 18 U.S.C. App Fed R Crim P Rule 4: Arrest Warrant or Summons Upon Complaint (2001), https://uscode.house.gov/view.xhtml?req=granuleid:USC-2000-title18a-node37-node43-rule4&num=0&edition=2000. See also Fed. R. Crim. P. 7.; Branzburg v. Hayes, 408 U.S. 665 (1972); and JM 9–11.000.  Probable cause typically requires a reasonable belief, supported by facts and circumstances, that a crime has been committed or that specific property is connected to a crime. footnote44_Gl2knmjJyYrkmi8Reu73r7FnqyiRPvZPHAzZ95j9k_s7qZyxQzD8GY44 “Probable Cause,” Wex, Legal Information Institute, Cornell Law School, accessed May 5, 2025, https://www.law.cornell.edu/wex/probable_cause.

Legal ethics rules support the probable cause requirement. ABA Model Rule 3.8(a) requires government lawyers to refrain from prosecuting a charge that they know is not supported by probable cause. footnote45_ZruxMxzDAejuJwhiB5Ha8UAhLe9EDeEFwoKM40fOt9s_fieN5IEpV9rq45 ABA Model Rules of Professional Conduct, R. 3.8, https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_8_special_responsibilities_of_a_prosecutor/.  Comments to the Model Rules explain the centrality of this evidentiary standard to a prosecutor’s ethical duties: “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons.” footnote46_cbOhtoNVZkOdF97nlTgtbYvE-RJRqDdGQVLpF0qSkDI_zjtCA3FNTtU946 ABA Model Rules of Professional Conduct, R. 3.8 (Comment), https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_8_special_responsibilities_of_a_prosecutor/comment_on_rule_3_8/.

Some states have adopted an even higher evidentiary standard. Ethics rules in Washington, DC, state that a “prosecutor in a criminal case shall not . . . prosecute to trial a charge that the prosecutor knows is not supported by evidence sufficient to establish a prima facie showing of guilt” — that is, evidence that would warrant a conviction unless contradicted or explained by the defendant. footnote47_h97ZH39a4zdCD85U5oediJEIGQXW0gLFqQiN2lPVHkg_xAafdVxmddXg47 D.C. Rules of Professional Conduct, R. 3.8, https://www.dcbar.org/for-lawyers/legal-ethics/rules-of-professional-conduct/advocate/special-responsibilities-of-a-prosecutor. One of the ethics complaints filed against U.S. Attorney for the District of Columbia Edward Martin alleges, in part, that the multiple baseless investigations against Jack Smith, prominent Democratic politicians, and others violate this rule. See United States Senate Committee on the Judiciary to Office of Disciplinary Counsel, Re: Request for Disciplinary Investigation of Edward Robert Martin, Jr., March 6, 2025, https://www.judiciary.senate.gov/imo/media/doc/2025–03–06%20SJC%20Bar%20Complaint%20re%20Martin.pdf.

DOJ prosecutors are also bound by numerous agency policies that reinforce “the longstanding threshold requirement . . . that a prosecutor may commence or recommend federal prosecution only if he/she believes that the person will more likely than not be found guilty beyond a reasonable doubt by an unbiased trier of fact and that the conviction will be upheld on appeal.” footnote48_BrHxuOJWCM4hwIx565FyvSkOaUlS747S0089MW-eO2g_sjN3Uy4pJdcF48 JM 9–27.000.

At least until recently, truly baseless prosecutions have been exceedingly rare. If anything, in high-profile cases DOJ lawyers have repeatedly recommended against prosecution — even where the evidence meets the threshold sufficiency requirement — when it has not served a substantial federal interest or for other prudential reasons. footnote49_TbD8w-SaqX6CdrRUVaAUvbXmqpT5GpLbCu2aaPQE0u8_en5ya214zivC49 U.S. Department of Justice, Report on Matters Related to Intelligence Activities and Investigations Arising out of the 2016 Presidential Campaigns, May 12, 2023, at 98, https://www.justice.gov/archives/media/1381211/dl; U.S. Department of Justice, Report on the Investigation into Unauthorized Removal, Retention, and Disclosure of Classified Documents Discovered at Locations Including the Penn Biden Center and the Delaware Private Residence of President Joseph R. Biden, Jr., at 200, https://www.justice.gov/storage/report-from-special-counsel-robert-k-hur-february-2024.pdf.

Other Abusive Criminal, Civil, and Administrative Actions

Aside from truly baseless or frivolous legal actions, prosecutors and other enforcement lawyers necessarily have broad discretion to investigate potential lawbreaking. But even that discretion has certain limits. As Attorney General Robert Jackson warned in 1940: “If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.” footnote50_qkHWhUgIa5SxG7Fm4Lc1L6AhDzRPq56RvRYS8jPA40s_cjHcTDGNM9Rs50 Robert H. Jackson, “The Federal Prosecutor,” Address at the Conference of United States Attorneys, Washington, DC, April 1, 1940, https://www.roberthjackson.org/speech-and-writing/the-federal-prosecutor/.  Jackson was specifically addressing the role of prosecutors, but his warning could apply to any lawyer responsible for enforcing federal law. Preventing the abuse Jackson warned against is the core objective of many rules proscribing the use of prosecutorial or other government power to harass or take retribution against political opponents, or as a bargaining chip to secure some concession unrelated to the matter being investigated. Even in cases in which government lawyers can identify a basis for some legal violation, selecting targets in order to harass, intimidate, or punish political opponents or to accomplish unrelated political goals is not permissible.

It is well established that criminal investigations intended to harass and intimidate or exact political retribution violate a defendant’s constitutional rights. footnote51_Nqt6Bfym0TeiPesx2E0pa1vul3i8Ns54AI0H3EIWco_kHuMiNlsTgea51 Protect Democracy, Supporting and Defending the Constitution.  Attorneys who participate in such proceedings or analogous civil matters can also violate ethics rules. For example, ABA Model 4.4(a) states that “in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.” footnote52_TDLdjY6487OegTY0pClr8H-MSHug9z7sBCicXmX3F0_cxMdzWkVazlB52 ABA Model Rules of Professional Conduct R. 4.4, https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_4_respect_for_rights_of_third_persons/.  The Arizona Supreme Court found that a county prosecutor violated the state’s analogue of this rule for initiating criminal charges against an elected official for the substantial purpose of “burden[ing] and embarrass[ing] a political foe” and exacting “politically-motivated revenge.” footnote53_ImBpPd6D4PcMvsjdGeyKnpYzYiqjbopIEXmyJe8Ogd4_p2LkgcLqb9Kd53In re State Bar of Ariz. v. Thomas, PDJ-2011–9002, at 233–46.

Similarly, ABA Model Rule 8.4(d) provides that it is “professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.” footnote54_yL1bbHWRwyeup5FyCvobJe6m75SUhKPkwaAkgtO-GY_mTKIcaKGWYhR54 ABA Model Rules of Professional Conduct, R. 8.4, https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_4_misconduct/.  The Indiana Supreme Court found that a county prosecutor violated the state’s analogue of this rule when he threatened to renew a dormant criminal investigation against a political candidate unless the candidate dropped his campaign for office. footnote55_Wbe5A3f2ZwYS179zKpYP5YupKjvQy7ofD7wVHKXp6–4_lcnRnAbQxwYj55In re Christoff, 690 N.E.2d 1135 (Ind. 1997).  The court noted that “the key element of culpability in the respondents’ actions was their use of the prosecutorial powers to further their self-interests.” footnote56_qvyOuxCAfQxLKNZoVnlVooETcQAum-rnUjR42EwVCo_b4uLWxFnDuWU56In re Christoff, 690 N.E.2d 1135 (Ind. 1997), at 1141.

Some state rules of professional conduct include additional guardrails against harassment. For example, Washington, DC, prohibits “improperly favor[ing] or invidiously discriminat[ing] against any person” in exercising discretion to investigate or to prosecute, as well as “seek[ing] or threaten[ing] to seek criminal charges or disciplinary charges solely to obtain an advantage in a civil matter.” footnote57_tvPDBFpUvDK9WTJuUe3g3BuhVhpm6DmujZPO8Dunk-A_lGMHr5Tu0d9P57 D.C. Rules of Professional Conduct, R. 3.8; and D.C. Rules of Professional Conduct, R. 8.4(g), https://www.dcbar.org/For-Lawyers/Legal-Ethics/Rules-of-Professional-Conduct/Maintaining-the-Integrity-of-the-Profession/Misconduct.  New York states that a lawyer shall not bring a legal proceeding that “has no reasonable purpose other than to delay or prolong the resolution of litigation . . . or serves merely to harass or maliciously injure another.” footnote58_N9fmRqTsad3zOWKCI3YvXY5kpmR6zK5TY55PCBm14MI_xT70TFpdFbts58 New York State Unified Court System, Part 1200: Rules of Professional Conduct, 3.1(b)(2), January 1, 2017, https://www.nycourts.gov/legacypdfs/rules/jointappellate/NY-Rules-Prof-Conduct-1200.pdf.  In both jurisdictions, prosecutors and government lawyers have periodically been disciplined for abusive practices. footnote59_hz5IrAjY40GCcuDy9t2ODhp8NRTE6Jo3jzq0JDFJc_csQoukDQgxLe59 See, e.g., William Haseltine, No.2015-D250, January 29, 2016, https://www.dcbar.org/Attorney-Discipline/Disciplinary-Decisions/Disciplinary-Case?docketno=2015-D250 (violation of DC Rule 8.4(g) resulting in an informal admonition).

DOJ’s internal policies and long-standing norms have also long contained safeguards to prevent use of federal law enforcement for political retribution and other abuses. footnote60_bErmQhX4PIymr7VnDSjotMckKqBdrltKxKL4160–6Ic_ytgwB30VF0qi60 JM 1–8.100 (“The rule of law depends upon the evenhanded administration of justice. The legal judgments of the Department of Justice must be impartial and insulated from political influence. It is imperative that the Department’s investigatory and prosecutorial powers be exercised free from partisan consideration.”).  (Many of these were crafted in response to abuses that took place in the mid-20th century, like FBI Director J. Edgar Hoover’s use of the agency to harass civil rights and labor leaders and compile dossiers on prominent politicians.) footnote61_UwEeDO-Ly9MSPR28kz-G0nvXx5970dUMrZkryYsZU_ypUiuS9nuAPn61 Mike German, “The FBI Targets a New Generation of Black Activists,” Brennan Center for Justice, June 26, 2020, https://www.brennancenter.org/our-work/analysis-opinion/fbi-targets-new-generation-black-activists.  DOJ’s policies have focused on preventing not only actual political bias, but also its appearance. footnote62_1HTWv3EMeLesEDm3mS5ZsnUz5Rlhs55pvkv8GAfxG8_kbLdxIsETeiT62 JM 9–27.260 (“In determining whether to commence or recommend prosecution or take action against a person,” a federal government lawyer may not be influenced by “the person’s political association, activities, or beliefs . . . , the attorney’s own personal feelings concerning the person [or] the possible effect of the decision on the attorney’s own professional or personal circumstances.”); and U.S. Department of Justice, Report on Matters Related to Intelligence Activities and Investigations Arising out of the 2016 Presidential Campaigns, 5 (“In examining politically-charged and high-profile issues . . . this Office must exercise . . . special care . . . particularly where it would create the appearance — even if unfounded — that the government is seeking to criminalize the behavior of political opponents or punish the activities of a specific political party or campaign.”).  Consistent treatment of defendants across different cases is critical in this regard. footnote63_4XebruuLPLoaOrpn8AjtZl0zObrShkJlxkkenFoWfZ4_nRreuE5qu05863 JM 9–27.220; JM 9–27.230.  Special Counsel Robert Hur’s report on President Biden’s handling of classified documents, for instance, noted the “Department’s prior treatment of former presidents and vice presidents who kept national security materials” as one factor that counseled against prosecution of Biden. footnote64_4RI2Z3N2gaHBZgaxvidC5iUkBkcyibj1PUftb5Wmo_e9uTJWcO5GK564 U.S. Department of Justice, Report on the Investigation into Unauthorized Removal, at 200. Another long-standing safeguard, although one that may be substantially eroding, is the expectation that political appointees will limit their direct involvement in investigatory and charging decisions, leaving those to career attorneys. footnote65_4VQ1ZfvyNwzMZADiyCq-csSEpD6fE03yB6r815lU3ws_qz8S7ceyfTXk65 For instance, in her letter of resignation following DOJ’s direction to drop charges against New York City Mayor Eric Adams, Acting U.S. Attorney Danielle Sassoon refuted charges that the office’s prosecution of Adams was politically motivated in part by noting that the former U.S. attorney who oversaw the case “did not manage the day-to-day investigation, and the charges in this case were recommended or approved by four experienced career prosecutors.” Danielle Sassoon, Letter to Attorney General Pamela Jo Bondi re: U.S. v. Eric Adams, https://www.documentcloud.org/documents/25526481-sassoon-letter/.

While individuals who face legal action frequently claim that they are being selectively targeted for political purposes, the bar for conduct that crosses the line is generally high. Courts do not typically inquire as to a government lawyer’s motives in a legal proceeding. footnote66_kYVdXnNIbByAUlGZ57bxWR1ukjkvbWDgBwpjwAnhBs_u4AfmTozrCmj66Wayte v. United States, 470 U.S. 598, 607 (1985); and United States v. Chemical Foundation, Inc., 272 U.S. 1, 14–15, (1926).  But in circumstances that raise the possibility that retribution or purely political motives served as the primary motivation for prosecution or enforcement, government lawyers can lose the presumption of regularity. footnote67_nJ8dWL-3VlmSBQg0Y3eYLYhef3MfgkYCJWvlFaKYo74_dLqvLtOxY47u67 See, e.g., Hartman v. Moore, 547 U.S. 250, 265 (2006) (emphasizing that the presumption of regularity is not absolute and can be suspended under certain circumstances); United States v. Armstrong, 517 U.S. 456, 464 (1996) (In a selective-prosecution claim, the Supreme Court found that although the presumption of regularity generally supports prosecutorial decisions, this discretion is “subject to constitutional constraints” and can be overcome by showing that the prosecution “had a discriminatory effect and that it was motivated by a discriminatory purpose.”); State v. Okland, 283 Mont. 10, 18 (1997) (“The presumption of regularity is a rebuttable presumption.”); and United States v. Chem. Found., 272 U.S. 1, 14–15 (1926) (“The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.”).

Conflicts of Interest and Other Misuses of Office

Conflicts of interest and related abuses of public office are another core concern, given that many high-level lawyers in the second Trump administration are taking on roles in which they could influence proceedings they previously handled in private practice (including on behalf of the president himself) or in which they could have financial conflicts or political biases. footnote68_bluV5mS9cmTK4KoeHcukfsM25GG1Wo1DSrCB7UgNg_etRniTuR8nTq68 For instance, several top DOJ lawyers previously served as the president’s personal lawyers in cases brought by the government. During his confirmation hearing on February 12, for example, Deputy Attorney General Todd Blanche acknowledged conflicts might arise due to his attorney-client relationship with Trump but pledged he would not violate his ethical obligations. Devlin Barrett, “Nominee for No. 2 Official at Justice Dept., Todd Blanche, Denounces Treatment of Trump,” New York Times, February 12, 2025, https://www.nytimes.com/2025/02/12/us/politics/trump-deputy-attorney-general-hearing.html; and Devlin Barrett, “Trump Picks Todd Blanche, His Defense Lawyer, to Be Deputy Attorney General,” New York Times, November 14, 2024, https://www.nytimes.com/2024/11/14/us/politics/todd-blanche-deputy-attorney-general-trump.html. Meanwhile, U.S. Attorney Ed Martin represented January 6 defendants and then became the lead government lawyer overseeing the dismissal of charges against them after they were pardoned; in at least one case, he was still the attorney of record for the defendant. Carrie Johnson, “Top Federal Prosecutor in Washington Previously Defended Jan. 6 Rioters,” NPR, February 17, 2025, https://www.npr.org/2025/02/15/nx-s1–5292205/ed-martin-dc-federal-prosecutor.

Federal law forbids all executive branch officials other than the president and vice president from participating in particular governmental matters in which they have a personal financial interest; violations can result in criminal prosecution. footnote69_QJBaTq1f7xBH-fcs2332-pbkEZ0TBMNNeM8ol3qw7w_ppIpv6tC7g0G69 See 18 U.S.C. § 208; 5 C.F.R. § 2635.502(a). Financial conflicts of interest in the Trump administration are beyond the scope of this paper but have been discussed extensively in other Brennan Center work. See Eric Petry, “Uncovering Conflicts of Interest and Self-Dealing in the Executive Branch,” Brennan Center for Justice, last updated February 21, 2025, https://www.brennancenter.org/our-work/research-reports/uncovering-conflicts-interest-and-self-dealing-executive-branch.  Related regulations also restrict government employees from using public office to benefit themselves and their family and friends and from otherwise acting in ways that could raise reasonable questions about their impartiality. footnote70_7OTI8ad3dcb-LwAXAW6tUYkNoGFVGITE5vG42bkxgCA_rpW9IuoRAluP70 5 C.F.R. § 2635.101; 5 C.F.R. § 2635.501.  Waivers are available in some of these instances, but they must be in writing and, in the case of financial conflicts, may be granted only if the conflict is not “substantial.” footnote71_ykN7edVhwli6HiX-5R-JmlKpIRG5rv0GOHXjpR4eg_cDf9hiu2IDVa71 18 U.S.C. § 208.

The Hatch Act also restricts partisan political activities by federal officials. While these restrictions vary depending on a person’s role — and are generally less restrictive for political appointees — they bar all federal officials other than the president and vice president from engaging in partisan political activity while on duty, using official resources for partisan political purposes, and using their position to interfere with an election. footnote72_K4yCn6cO5lymGAjM8xdDEfvYLXCTcQ7D109Ta1kSefE_x4wjKx6iQul272 Hatch Act, 5 U.S.C. § 7322 – 7324.

Attorney ethics rules impose further restrictions. Government lawyers generally may not participate in official matters that they previously worked on outside of government, including “any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter” involving a specific party or parties. footnote73_VkbOFPBnQqEMmCgM0lLudJaXtLXZqNjGNdzb6Q9ay0_gYXMiajS9tfA73 ABA Model Rules of Professional Conduct, R. 1.11(d)–(e); and ABA, Variations of the ABA Model Rules of Professional Conduct, 1.11, March 2023, https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/mrpc-1–11.pdf; D.C. Rules of Professional Conduct, R. 1.11, https://www.dcbar.org/for-lawyers/legal-ethics/rules-of-professional-conduct/client-lawyer-relationship/successive-government-and-private-employment; Maryland Code and Court Rules, R. 19–301.11, https://govt.westlaw.com/mdc/Document/N97D28840F65A11EDBCA6E3D52AAB2F2D?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)&bhcp=1; Virginia Rules of Professional Conduct, R. 1.11, https://vsb.org/Site/Site/about/rules-regulations/rpc-part6-sec2.aspx); and New York State Unified Court System, Rules of Professional Conduct, R. 1.11, https://www.nycourts.gov/legacypdfs/rules/jointappellate/NY-Rules-Prof-Conduct-1200.pdf.  This rule is an extension of the more general prohibition that exists in all U.S. jurisdictions on lawyers working on legal matters where they previously took an opposing position. footnote74_5JGUrEEvNu8yBBMtG7RxYdzms92FQ1x6OIg8lpD1TiM_oky723VBx3CK74 D.C. Rules of Professional Conduct, R. 1.9 (Comment), https://www.dcbar.org/for-lawyers/legal-ethics/rules-of-professional-conduct/client-lawyer-relationship/conflict-of-interest-former-client.  These restrictions can be waived, but only if the lawyer’s prior client and the government agency where they currently work do so in writing. footnote75_5MoG-nnkLXPv0PCX9xVqXdubtTp3uI0M1hb0ow9ThwU_bJmunzSVthzc75 5 C.F.R. § 2640.301.

Finally, long-standing agency guidelines often go beyond the requirements of federal ethics law and state bar rules. DOJ lawyers, for instance, are required to avoid situations in which their official actions affect or appear to affect private interests, financial or nonfinancial. footnote76_2IIUWqMFcCMyWFLtAGHpTAFyROZ-YzwCdr7-dlFlgs_hijYV4ELjbQD76 U.S. Department of Justice, Ethics Handbook for On and Off-Duty Conduct, November 2024, https://www.justice.gov/jmd/ethics/ethics-handbook.  Another DOJ rule prohibits employees from engaging in an investigation if they have “a personal or political relationship” with anyone involved in the investigation or any person or organization that they know has a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution. footnote77_5WW1L4S2Gh3M3wZx6oTqDL6FhcfGOsOM-hChI5facsY_asIXw6juUuPc77 28 C.F.R. § 45.2(a).  A “close identification with an elected official, a candidate . . . a political party, or a campaign” are types of political relationships that would require recusal. footnote78_fwbwJxqVBCm243sgtOqSI3EPtR2f6z8HOkr5iRlBrnk_jjRw4KPdPq0a78 28 C.F.R. § 45.2(c)(1).

In keeping with these guidelines, high-level officials in every past administration, including the first Trump administration, recused themselves to avoid the appearance of bias in criminal or civil matters before DOJ. For instance, Attorney General Jeff Sessions recused himself from supervising Special Counsel Robert Mueller’s investigation of Russian interference in the 2016 election, which included an investigation of the 2016 Trump campaign, because he had previously served as chairman of the campaign’s national security committee. footnote79_UchsimsVHDimouI3p6F-gUx3zx6m-ATj5w2ogoXUQ_w3EpTBA8orY279 Jessica Taylor, “Attorney General Sessions to Recuse Himself from Any Trump Campaign Investigations,” NPR, March 2, 2017, https://www.npr.org/2017/03/02/518198749/attorney-general-sessions-to-recuse-himself-from-any-trump-campaign-investigation.  President George W. Bush’s attorney general, John Ashcroft, recused himself from an investigation into the leak of former undercover CIA officer Valery Plame’s identity, citing his close personal ties to administration officials who would be questioned during the investigation. footnote80_YJuDE7j-E9RxAsEXl1cg1i6gUo-zJEBa8sQzRqjU00_kUObzBCVq3CT80 Dan Eggen and Mike Allen, “Ashcroft Recuses Self from Leak Case,” Washington Post, December 30, 2003, https://www.washingtonpost.com/archive/politics/2003/12/31/ashcroft-recuses-self-from-leak-case/53c7218b-24e6–4b03–8759–0e134d4551fb/.  And President Obama’s attorney general, Eric Holder, recused himself from several investigations into private actors that he had previously represented, including Swiss bank UBS and former baseball player Roger Clemens. footnote81_wDJ6jJiqqmFznAPqStZj0tEgVm0fSep4O6tcU7l0eV0_lqRAy1kY3lGf81 Associated Press, “Attorney General Recuses Himself in Clemens Probe,” Washington Post, March 12, 2009, https://www.washingtonpost.com/wp-dyn/content/article/2009/03/11/AR2009031104310.html; ABC News, “UBS Honcho: Swiss Law Trumps U.S. Probe,” March 4, 2009, https://abcnews.go.com/TheLaw/DOJ/story?id=7008336.  Altogether, previous attorneys general have recused themselves more than a dozen times since 1990 because of real or perceived conflicts of interest. footnote82_trRZcA1GLstKgTbAvdswmlnn4zi4FywxXrf7mSQzsig_cSZyHeqdfYyt82 Congressional Research Service, “Legal Sidebar: A Brief History of Attorney General Recusal,” March 8, 2017, https://sgp.fas.org/crs/misc/recusal.pdf. See also Faiza Patel and Rudy Mehrbani, “What Trump Doesn’t Get: Sessions Recusal from Russia Probe Was Mandatory,” Brennan Center for Justice, August 7, 2017, https://www.brennancenter.org/our-work/analysis-opinion/what-trump-doesnt-get-sessions-recusal-russia-probe-was-mandatory.

Serious consequences can result when a lawyer fails to abide by these safeguards. In 2023, for example, Rachael Rollins, President Biden’s appointee to serve as U.S. attorney in Massachusetts, resigned in the face of multiple investigations that subsequently found she had violated numerous ethical rules and the Hatch Act in her attempts to interfere in a local district attorney race. footnote83_XsRKCQ7nmnRxUZKDqnI-MYsQfkDnHI1TjZBLC-LfWK0_v7oZiYHYyan683 Office of the Inspector General, An Investigation of Alleged Misconduct by United States Attorney Rachael Rollins, May 2023, https://oig.justice.gov/sites/default/files/reports/23–071.pdf.  Other DOJ attorneys have been investigated and sometimes disciplined by DOJ or ethics authorities for participating in investigations of former clients and other associates and only “informally recusing,” unwittingly failing to disclose their prior representation of an investigatory target (the attorney had not realized that the target was a former law firm client), working on a matter involving a client the attorney had previously represented in private practice, inappropriate political bias in hiring career employees, and lack of candor during interviews with the Office of the Inspector General. footnote84_MYR0wkvcQHKVy5v0ZYOPRAbH18go47mmDN5Q2oeAs_oVnmYLss7qji84 Office of the Inspector General, Misconduct Report: Findings of Misconduct by a Then United States Attorney for Violating DOJ Policy Regarding Possible Conflicts of Interest and by a Then First Assistant United States Attorney for Failing to Report Those Possible Conflicts, April 29, 2020, https://oig.justice.gov/foia-reading-room/misconduct-report-findings-misconduct-then-united-states-attorney-violating-doj; Hamilton P. Fox, III, “Letter: In re Samer B. Korkor,” D.C. Office of Disciplinary Counsel, October 28, 2020, https://www.dcbar.org/ServeFile/GetDisciplinaryActionFile?fileName=20201028Korkor.pdf; Office of the Inspector General, Investigative Summary: Finding of Misconduct by a Then Criminal Division Attorney for Working on a Matter Involving a Client, and for Making False Statements and Lacking Candor During an OIG Interview, August 31, 2023, https://oig.justice.gov/sites/default/files/reports/23–099_0.pdf; Office of the Inspector General, An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General: Special Report, July 2008, https://oig.justice.gov/sites/default/files/archive/special/s0807/chapter8.htm; and Office of the Inspector General, Investigative Summary: Findings of Misconduct by an Assistant United States Attorney for Lack of Candor, December 4, 2024, https://oig.justice.gov/sites/default/files/reports/25–008.pdf.

Individual and Supervisory Responsibility

Finally, government lawyers may face ethical questions when they are directed to take certain actions by a supervisor. Attorney General Pam Bondi and other key administration officials have made clear that they will not tolerate dissent from any DOJ 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.” footnote85_VAJDH9QnWCd1aoFzp30pJXd3k4kdWJNcPibeegh0Mt0_f5qwxdOvqZTc85 Office of the Attorney General, Memorandum for All Department Employees: General Policy Regarding Zealous Advocacy on Behalf of the United States, February 5, 2025, https://www.justice.gov/ag/media/1388521/dl?inline.  As noted, a number of career DOJ lawyers have already resigned when faced with directives that they felt violated their professional obligations.

These resignations are understandable, given that all practicing lawyers have an independent obligation to comply with ethical rules and standards regardless of the instructions they receive from superiors. ABA Model Rule 5.2(a), adopted in virtually all U.S. jurisdictions, provides that lawyers cannot excuse or ignore their ethical obligations simply by claiming they were following orders (colloquially known as the “Nuremberg defense”). footnote86_yOGU47qPwtHCFVE1y909217Dw4–5nUD8gHNIbiB7I_r25PkJuAHiUx86 ABA Model Rules of Professional Conduct, R. 5.2, https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_5_2_responsibilities_of_a_subordinate_lawyer/.  This principle applies to government lawyers just as much as it does to those in private practice.

In one Oklahoma case, for example, an assistant district attorney was suspended for abuse of the subpoena process, failure to disclose evidence, and other prosecutorial misconduct. The district attorney, his supervisor, was found to have routinely sanctioned some of this misconduct, but that did not prevent the attorney himself from being suspended for 180 days, a potentially career-ending sanction. footnote87_KhLOLst8KrZg-CsTTR-fX1YhhCAT8nf0u5CWg04IYg_eOkYUlIlC13Z87State ex rel. Oklahoma Bar Ass’n v. Miller, 309 P.3d 108, (June 28, 2013).

While subordinates cannot excuse unethical conduct on the grounds that they were obeying a supervisor, lawyers acting in a supervisory capacity can be held responsible for the actions of their subordinates. ABA Model Rule 5.1(c), for example, provides that an attorney can be held responsible for other lawyers’ violations if that attorney ordered the violation, knew of the violation and ratified it, knew of the violation and failed to take action, or made a professional judgment that protected the subordinate. footnote88_6EzZmNcLhgXvBDS1RsWSme4uMfRd3BYo0PA7VraSG-0_btwgCzYnbEYB88 ABA Model Rules of Professional Conduct, R. 5.1, https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_5_1_responsibilities_of_a_partner_or_supervisory_lawyer/.  Washington, DC, professional conduct rules explicitly state that Rule 5.1 applies to “government lawyers.” footnote89_MMlDsJAikdFy903MfNun1fEXkk0A3HsHuLKRnJ-5bYs_jtlUDSwcNm5Z89 D.C. Rules of Professional Conduct, R. 3.8. Model Rule 3.8, on the special obligations of prosecutors, makes clear that supervisory obligations also apply to them. ABA Model Rules of Professional Conduct, Rule 3.8. As ABA Formal Opinion 09–454 explains, “Any supervisory lawyer in the prosecutor’s office and those lawyers with managerial responsibility are obligated to ensure that subordinate lawyers comply with all their legal and ethical obligations.” The opinion adds, “Supervisors who directly oversee trial prosecutors must make reasonable efforts to ensure that those under their direct supervision meet their ethical obligations of disclosure, and are subject to discipline for ordering, ratifying or knowingly failing to correct discovery violations.” ABA Standing Committee on Ethics and Professional Responsibility, Formal Ethics Opinion 09–454 (Prosecutor’s Duty to Disclose Evidence and Information Favorable to the Defense), July 1, 2009, https://www.americanbar.org/products/ecd/chapter/220016/. Similarly, Model Rule 8.4(a) states that “it is professional misconduct for a lawyer to . . . violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.” footnote90_m7K58jOZVAMu0k8vRwCGnJ-U1pxNo9yVyXjqcgHXQCU_bPotQmhOHC4e90 ABA Model Rules of Professional Conduct, R. 8.4.  Most states and Washington, DC, have incorporated these principles into their respective codes. footnote91_g6z-XOXwa76nFcjjZjaL6qZiN363FoRUNC9W8pjaDNE_ob1SQubjOC8g91 D.C. Rules of Professional Conduct, R. 8.4. Indeed, the Model Rules not only prohibit a lawyer from ordering a subordinate to violate the rules but go so far as to require a “lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects” to “inform the appropriate professional authority.” ABA Model Rules of Professional Conduct, R. 8.3, https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_3_reporting_professional_misconduct/. Most states’ individual rules adopt this principle, and some states build on it. For example, Iowa and Kansas require a lawyer who knows that another lawyer has committed any violation of state ethics rules — however small — to report the misconduct. Iowa Rules of Professional Conduct, ch. 32, https://www.legis.iowa.gov/docs/publications/ICRC/32.pdf; and Kansas Rules of Professional Conduct, R. 8.3, Reporting Professional Misconduct, https://kscourts.gov/KSCourts/media/KsCourts/Rules/RULE-8–3.pdf?ext=.pdf. The ABA has also opined that lawyers with managerial authority must establish policies and procedures “ ‘to ensure’ that all lawyers and nonlawyers in their offices conform to the Model Rules.” ABA Standing Committee on Ethics and Professional Responsibility, Formal Opinion 467: Managerial and Supervisory Obligations of Prosecutors Under Rule 5.1 and 5.3, September 8, 2014, https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/ethics-opinions/aba-formal-opinion-467.pdf. 

In short, all government lawyers are responsible for their own actions and for upholding the standards of the legal profession, whether giving or following orders. Government lawyers cannot excuse their conduct by shifting the blame onto a superior or someone who reports to them.

The ethical standards and commitments sketched out in this resource serve as important checks on abuse of power, regardless of who occupies the White House. As should be evident from the discussion above, the consequences of violating these standards can be significant. Lawyers can be referred to bar authorities for discipline ranging from public admonition to suspension of one’s law license to disbarment. State bar discipline is usually preceded by a lengthy and public disciplinary process, which often needs to be disclosed when a lawyer subject to such discipline seeks to appear in a new court or practice law in a new jurisdiction. footnote1_hkeiGYYONPoraJvefY7Vh5GULnmq9C-orKgKZFS2Zo_x4chU7hvIStf1 Several Trump administration figures, including Martin and Acting Deputy Attorney General Emil Bove, have had multiple bar complaints filed against them, although these disciplinary proceedings are unlikely to be resolved quickly.  Therefore, even when a lawyer does not face formal consequences, violations of ethics rules can damage the lawyer’s professional reputation, impacting future employment prospects, associations, and relationships within the legal community.

Courts also have inherent authority to sanction attorneys appearing before them. This is because lawyers are “officers of the court,” implying a special relationship between lawyers and the courts that have licensed and regulated them. Judges may consider a lawyer’s ethical violations when determining the outcome of a case, especially if the misconduct has significantly affected the proceedings. While individual judges themselves cannot take away an attorney’s law license, they may disqualify an attorney from a case, order monetary penalties, and at times impose other sanctions (e.g., requiring continuing legal education). Courts may also refer lawyers to disciplinary authorities.

As discussed above, some ethical violations also overlap with criminal and civil law — for instance, a lawyer who lies under oath breaks numerous ethical rules and also potentially commits perjury, a criminal offense. Ignoring conflicts of interest and other violations of government ethics rules can also carry both criminal and civil liability. footnote2_bCifyZ1ieFwADdsxNRNWOsIWUoBeIb5EqLU82ftfRdY_m8anHwOZiAX82 18 U.S.C. § 208; 28 CFR § 45.2.

Finally, clear disregard for ethical rules and standards has historically resulted in other serious professional consequences. Trust and perceived integrity are central to a lawyer’s success, making compliance with ethical rules indispensable to safeguarding one’s professional reputation and sustaining a long-term legal career.

Allegations of unethical behavior by a lawyer should never be made lightly or used as a proxy to litigate substantive disagreements about law or policy. But the high standards to which all lawyers are held in the United States remain a bulwark to defend the rule of law, which is critical for all members of the profession to maintain.

In addition to his work at the Brennan Center, Daniel I. Weiner serves as an alternate hearing committee member for the District of Columbia Board on Professional Responsibility. His participation in this paper is solely in his capacity as an employee of the Brennan Center and does not reflect the views, if any, of the board.