I further direct the Attorney General to take all appropriate action to refer for disciplinary action any attorney whose conduct in Federal court or before any component of the Federal Government appears to violate professional conduct rules, including rules governing meritorious claims and contentions, and particularly in cases that implicate national security, homeland security, public safety, or election integrity. In complying with this directive, the Attorney General shall consider the ethical duties that law partners have when supervising junior attorneys, including imputing the ethical misconduct of junior attorneys to partners or the law firm when appropriate.I further direct that, when the Attorney General determines that conduct by an attorney or law firm in litigation against the Federal Government warrants seeking sanctions or other disciplinary action, the Attorney General shall, in consultation with any relevant senior executive official, recommend to the President, through the Assistant to the President for Domestic Policy, additional steps that may be taken, including reassessment of security clearances held by the attorney or termination of any Federal contract for which the relevant attorney or law firm has been hired to perform services.I further direct the Attorney General, in consultation with any relevant senior executive official, to review conduct by attorneys or their law firms in litigation against the Federal Government over the last 8 years. If the Attorney General identifies misconduct that may warrant additional action, such as filing frivolous litigation or engaging in fraudulent practices, the Attorney General is directed to recommend to the President, through the Assistant to the President for Domestic Policy, additional steps that may be taken, including reassessment of security clearances held by the attorney, termination of any contract for which the relevant attorney or law firm has been hired to perform services, or any other appropriate actions.
What are the implications for court-martial defense counsel and attorneys who represent (or have in the past eight years represented) military clients in proceedings for federal court habeas corpus or other forms of collateral review?
Sure makes one ask whether they would still undertake cases or clients like those they vigorously litigated or defended 50years ago , especially if media interest was in the clients' interest.
ReplyDeleteI am Canadian, and do not litigate in the US. So, I am not sufficiently well-informed about practice before the Federal Court in the US.
ReplyDeleteBut I do have a fair bit of experience with Canada's Federal Court. And here's the thing: the Court is capable and competent to control its own process. The US system, like Canada's, is founded on Common Law democratic principles within a federal nation-state. Within such democratic states, there is a separation of powers between the branches of government (although, in Canada's Westminster Parliament, there is what could be characterized as overlap between the executive and the legislature). The judiciary and the courts benefit (or are supposed to benefit) from independence from the other branches.
In Canada, upon application from a party to litigation, the Federal Court can dismiss or strike frivolous or vexatious litigation. In fact, under s 40 of the Federal Courts Act, the Federal Court or Federal Court of Appeal can declare a litigant to be a "vexatious litigant" where the litigant has "... persistently instituted vexatious proceedings or has conducted a proceeding in a vexatious manner ...". That then creates an onus on that party to seek leave of the court for any future proceeding. While applications for such declarations are typically brought by the Attorney General of Canada (and, if brought by another party, requires the consent of the AGC), the role of the executive is to bring the application, bot to take unilateral and punitive action against the lawyer or law firm representing the party.