Why not the “A Team,” Part Two

Yesterday, I asked why, during the oral argument before a Ninth Circuit panel, the Justice Department’s “A Team” wasn’t deployed to defend the Trump administration’s executive order limiting entry into the country. By the “A Team” I meant Noel Francisco, the acting solicitor general who until recently was a partner at the law firm of Jones Day.

Both Francisco and acting assistant attorney general Chad Readler, also formerly of Jones Day, recused themselves from participating, leaving the oral argument to DOJ career lawyer August Flentje, who struggled. Francisco and Readler recused themselves, in the DOJ’s words, “out of an abundance of caution, in light of a last-minute filing of an amicus brief by their former law firm.”

I doubted that their recusal was required. But lacking expertise, I spent part of yesterday corresponding with people who possess it.

A prominent law professor who teaches legal ethics was very clear that, on the facts as they appear, Francisco and Readler could have participated in the argument without any ethical problem. As he put it:

There is no conceivable conflict in taking a position that is contrary to a position that your former law firm is now taking. The lawyer owes loyalty to the new client, not the former firm or the clients of the former firm.

You can’t blame Francisco and Readler for being abundantly cautious. However, I hope they will feel free to jump into this litigation.

Meanwhile, my friend Hans von Spakovsky raised the possibility of an ethical problem with the Jones Day lawyer filing an amicus brief attacking the Trump administration’s executive order. Suppose Francisco and/or Readler worked on the executive order while still with Jones Day. In that case, Jones Day would have “switched sides” when another partner, Meir Feder, filed a brief arguing that the executive order is unlawful.

The legal ethics professor I consulted confirmed that it would be a conflict for Jones Day to attack in court an order that its lawyers helped draft. He cited DC Rule 1.9 & Comment 1 which, in the same or similar words, exists in all jurisdictions. Its ban on lawyers representing a client in one side of a dispute and later representing another client with materially adverse interests in the same dispute is imputed to all members of a law firm.

I emphasize again that the ethical problem discussed here assumes that Francisco, or Readler or other lawyers who have worked at Jones helped draft the executive order or provided legal advice about it AND that they were still with Jones Day when they helped draft it or provided legal advice.

I don’t know whether this was the case. Presumably, Jones Day looked into it before granting approval for Feder to file an amicus brief arguing that the executive order is illegal, but I don’t know that either.

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