A Survival Guide for Justice Department Attorneys

The past year has shown that at any moment you may be placed in a situation where you will have your professional and legal ethics challenged. Before that happens, it is good to be prepared.

 

The following is an article drafted by Jonathan Rusch, Director of the Anti-Corruption Law Program at the American University Washington College of Law and a 26-year DOJ veteran. We are publishing this article with his permission.

Since the start of the second Trump Administration, attorneys at the Justice Department – in U.S. Attorney’s Offices and Main Justice – have been at the center of an unprecedented political maelstrom.

That maelstrom, by design, has involved wholesale eliminations of litigating units, substantial reductions in staffing, and the termination of individual attorneys for having participated in past investigations or cases that personally offended or angered President Trump.

Because that maelstrom is ongoing, attorneys still at the Department may be uncertain about whether they can continue to do their jobs and serve the public effectively. The answer to that question for the vast majority of attorneys within the department is a resounding yes.

But regardless of your position and where you work within the department, the past year has shown that at any moment you may be placed in a situation where you will have your professional and legal ethics challenged. Before that happens, it is good to be prepared.

As a 26-year veteran at the Justice Department, and now a professor and practicing lawyer in Washington, D.C., I would like to share a survival guide that I would follow if I were still at the Justice Department.

Reread and Comply with the Rules of Professional Conduct

Refresh your recollection about the rules of professional conduct and other ethical constraints on Justice Department attorneys. One great resource, from Protect Democracy, is Supporting and Defending the Constitution: A DOJ Attorney’s Guide to Upholding Ethical Obligations and the Rule of Law.

There are two rules of professional conduct that are critical:

• Rule of Professional Conduct 3.8(a). Although every federal criminal prosecutor should always adhere to all the requirements of Rule 3.8, Special Responsibilities of a Prosecutor, recent experience has shown that prosecutors in this Administration need to pay particular attention to Rule 3.8(a): that a criminal prosecutor shall “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.”

• Rule of Professional Conduct 3.3. Every lawyer must comply with all provisions of Rule 3.3, “Candor Toward the Tribunal.” But in light of widespread judicial dissatisfaction with the Administration’s lack of compliance with court orders in immigration cases (even a recent finding of contempt against a military lawyer on detail to the Justice Department), Department attorneys, whether criminal or civil, must pay close attention to two provisions of Rule 3.3 in particular:
  • Rule 3.3(a)(1) – A lawyer shall not knowingly “make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.” This provision is likely to come into play if a Department attorney determines that a client agency, such as ICE, is making false or baseless statements about a noncitizen (e.g., alleged gang affiliation).
  • Rule 3.3(a)(3) – A lawyer shall not knowingly “offer evidence that the lawyer knows to be false.” If a lawyer learns that evidence already offered is false, they “shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.” This provision is likely to come into play if a Department attorney has genuine doubts about the provenance or authenticity of a document (or perhaps even live testimony) provided by an agency.

Although both rules prohibit only “knowing” conduct by an attorney to constitute an ethical violation, Department attorneys handling a particular case can only stall for so long before deciding whether or not they are being expected (though not necessarily told) to mislead the court about material facts relating to that case. And the closer you get to “knowing” violations of bar rules, the greater the risk of bar discipline.

If you reach that point, in light of bar rules, rely on those rules in advocating your position with your supervisors.

Prepare to make hard choices

Should a particular case or cases reach a point where you are effectively being asked to take actions inconsistent with your ethical or legal obligations, you unfortunately have only three options. As political scientist Albert O. Hirschman put it, they come down to “exit,” “voice,” and “loyalty.”

“Voice” refers to efforts by a person to express their concerns or reservations about a particular action within their organization. If possible, escalate your concerns to one or more experienced supervisors who you know to have sound professional judgment, and back your views with as much factual information as possible.

Where appropriate, rely on well-established and nonpartisan professional-conduct standards such as the Department’s Principles of Federal Prosecution and the Rules of Professional Conduct for the applicable state bar(s).

If that avenue is closed off, you unfortunately are forced to choose between two unpalatable alternatives.

“Loyalty” is what this administration demands. They believe zealous advocacy requires department attorneys to accede, or even endorse, the President’s policy objectives and litigation tactics without qualification, even if you have legal or ethical objections that you think are well-founded.

When placed in this predicament, “exit” may become your sole remaining option.

If it’s your last option, plan your exit

How you exit, of course, may matter substantially with regard to your future employability. Protect Democracy’s Resign or Be Fired? is a helpful document explaining the practical impacts of being fired or choosing to resign.

If you anticipate leaving the Department, do what you can in advance to put out feelers discreetly to friends and former colleagues now outside DOJ and try to find a suitable landing place. Avail yourself of Justice Connection’s employment support offerings, including informational interviews with alumni and job postings.

Keep in mind that when you leave the Department, you may not remove copies of any Department documents or correspondence without authorization. You can and should take detailed notes about the circumstances leading to your departure, and if possible, make an internal record of those circumstances with supervisors you trust. (If you end up being fired, those notes could be helpful to any challenge of your termination before the Merit Systems Protection Board.)

If you choose to resign, be measured in how you speak publicly about your decision to leave the department. Department attorneys still have attorney-client privileges they need to maintain even after their departure. Public comments may affect litigation you may be pursuing because of actions taken against you, or whistleblowing actions you intend to take. If you have questions about what you can and can’t say about your work at the department, seek advice from your state bar or speak with an attorney. If you need pro bono legal counsel, contact Justice Connection.

You should also keep in mind that what you say may impact your candidacy for landing your next job. Potential employers seeking to hire an attorney will look closely at how you treat your professional obligations to your last client.

Talk to people

Regardless of the decision you make to stay or leave, talk to family, friends, and former colleagues, while remaining mindful of attorney-client considerations. Don’t be reticent to talk about how you feel. That includes talking about your work at Justice in which you should rightly take pride, not just the situations that made you frustrated or angry. And if you’re feeling stress or anxiety, contact Justice Connection, which can connect you with licensed mental health providers. Many of your DOJ colleagues have already benefited from this.

Guiding touchstone

Ultimately, we should bear in mind the words of then-Attorney General Robert Jackson, who said, “the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.”

Those words – which the Justice Department continues to post on its website – should be your touchstone in judging how you serve the public interest.

Jonathan J. Rusch is Director of the Anti-Corruption Law Program and Adjunct Professor at the American University Washington College of Law, Adjunct Professor at Georgetown University Law Center, and a 26-year veteran of the Fraud Section in the Justice Department’s Criminal Division.