Naming Names

A report in The Intercept described how some immigration judges are allowing government lawyers representing Immigration and Customs Enforcement (ICE) to remain anonymous. The report quotes an immigration judge saying “We’re not really doing names publicly,” after publicly stating the name of the immigrants and their lawyers. The immigration judge attributed her decision not to identify the ICE lawyer to “privacy” concerns, because “things lately have changed.” Another immigration judge in New York avoids identifying government lawyers by simply referring to them as “Department,” as in, “Department, are we done with pleadings?”

The Intercept story draws the obvious parallel with ICE agents concealing their identities by wearing masks. Tom Homan, the administration’s so-called “border czar” (can we quit having “czars” in government?), has claimed that the masks are a response to “hateful rhetoric,” by which he means members of Congress comparing ICE to the Gestapo, and an eightfold increase in assaults on ICE agents. The 8x figure is technically correct, but look more closely at the data: Fox News reported, based on information provided by ICE, that there were 79 assaults during approximately the first six months of this year, compared with 10 in the same period last year. What has also changed, however, is the denominator of the fraction: The enormous increase in ICE enforcement activity between last year and this year means there are many, many more encounters between ICE agents and civilians. For all we know, the per-encounter rate of assault (which is presumably what officers care about) may have gone down, which wouldn’t be surprising in light of the intimidating show of force that ICE has engaged in recently.

A retired police supervisor in California, quoted in a USA Today story, compared police officers with other government officials with reference to the importance of public accountability:

"You know who doesn't wear masks? Judges. District attorneys. Public defenders. State and local law enforcement, except for very narrow carveouts," Goldstein said. "The safety issue is just an excuse. The administration doesn't seem to understand that it's their heavy-handed tactics that are increasing the level of danger to their officers. They are pissing off ordinary Americans."

Ha ha ha, the DOJ has fixed that for you. Now the equivalent of district attorneys – the government lawyers who represent ICE at immigration hearings – are wearing masks too. Maybe not literally, but immigration judges are trying to ensure that these lawyers have an equivalent of a mask so that members of the public do not learn who is representing ICE.

What effect does this have on the accountability of lawyers? It depends on what is meant by accountability? Mention “legal ethics” to lawyers and they tend to think about the state rules of professional conduct and the associated grievance process. But ethics, and accountability, is broader than formal legal responsibility. It can also include informal social mechanisms, like public criticism, gossip, and shaming. This is perfectly familiar in what we might call the “private ethics” of ordinary life, from online groups for sharing information about creepy dating behavior to the recent Coldplay kiss cam story:

(Best Internet response: Can you imagine finding out in that way that your husband listens to Coldplay?) The kiss cam story illustrates how much more complicated practices like gossip and shaming, and more serious sanctions, such as losing one’s job, can be in public ethics.

Consistent with my promise to several readers to try to keep these posts a bit shorter, I want to look at formal and informal accountability for anonymous ICE lawyers.

Accountability Under the Rules

In the most recent episode of the Serious Trouble[podcast, Josh & Ken talk about this story, suggest that it is “an aggressive outgrowth of this attitude that the administration has been pushing very hard, that ICE agents and others connected to the immigration efforts are in danger,” and then Ken says this:

I think it would also be dubious in terms of ethics, legal ethics under the codes of various states.

That got me thinking . . . is it? Is there any reason under the rules of professional conduct that an ICE lawyer could not go along with the judge’s practice of not identifying the lawyer by name? Or, since the immigration judge is a lawyer, is there a reason the judge can’t do this (including under any applicable judicial conduct rules¹? A couple of ideas:

• Is it a false statement of material fact, under Rule 4.1(a), or the omission of a material fact where disclosure would be necessary to avoid assisting a criminal or fraudulent act by the client, under Rule 4.1(b)? I don’t think so. If the Immigration Judge asks, “is the Department finished with pleadings?” and the lawyer answers “yes, your Honor,” what, specifically is the misrepresentation? The lawyer is acting on behalf of the Department and so isn’t lying about that. Is the undisclosed fact, i.e. “yes, and my name is Brad Wendel,” material to the proceeding? Arguably identifying the lawyer is necessary to allow the court to impose sanctions for misconduct, if appropriate, but the lawyer is almost certainly identified to the court. The question is whether it is material to the public, so interested observers can potentially file disciplinary grievances against the lawyer. I’m skeptical, since “material” in the rule is generally understood as evidentiary materiality – i.e. bearing on the resolution of a fact at issue in the proceeding. And the further problem with the Rule 4.1(b) theory is that the government is not committing a crime or fraud in the proceedings (as opposed to in the conduct of ICE agents outside of the courtroom) which could be avoided by disclosing the identity of the lawyer.

• Is it “conduct involving dishonesty, fraud, deceit or misrepresentation,” under Rule 8.4(c) or “conduct that is prejudicial to the administration of justice;,” under Rule 8.4(d)? People like to cite these catch-all rules whenever a lawyer does something that seems kind of skeevy. I have a longstanding gripe about this tendency, because it is very clear from the drafting history of the Model Rules that they are intended to be interpreted like a statute, as opposed to a set of aspirational norms or guidelines. That means employing canons of construction like generalia specialibus non derogant – the specific provision controls over more general language. If you don’t care about hoary Latin phrases, look at it this way: The drafters took the time to create a rule with specific conditions and exceptions as a way of recognizing that a lawyer’s duty in a particular case reflects a balancing of competing policy considerations. In the case of provisions like Rule 4.1 on dishonesty, the rule recognizes that lawyers also owe duties to their client (see the qualification on disclosure duties where disclosing information would be prohibited by the rule of confidentiality, Rule 1.6), and also that the tribunal is concerned only with false statements of fact that are pertinent to the issues it is deciding. If the catch-all provisions in Rule 8.4 can vary the disclosure duties in Rule 4.1, the effect would be to blow up the policy balance and also make it a heck of a lot more difficult for lawyers to apply the rules in a forward-looking manner, when trying to decide what to do in a marginal case. That’s why I regard it as a sloppy use of the rules to appeal to the catch-all provisions to address conduct not specifically prohibited elsewhere in the rules.

All is not lost, however, because no one ever said that all misconduct by lawyers must be addressed by the rules and the disciplinary process. There is a role for informal norms, customs, peer pressure, reputational concerns, and familiar social sanctioning mechanisms, even in public ethics.

Informal Accountability Mechanisms: Shaming and Shunning

I suppose I should have predicted this, but I was surprised to learn that there is a website documenting and disclosing the identities of lawyers who work for ICE, and it includes a profile of one of the lawyers mentioned in the Intercept story. It is described as “an accountability project created by the Crustian Daily,” which in turn holds itself out as a platform for independent investigative journalism, but I have no independent knowledge of who or what is behind this website or the ICE List. Not surprisingly, the agency is freaking out about the ICE List, calling the group behind the accountability project “thugs.”

The ICE List is yet another example of the phenomenon of doxxing, i.e. disclosing identifying information, including addresses and phone numbers, of people who engage in activities that others consider anti-social, is a perennial ethical issue. There really isn’t any partisan valence to it. (For once I agree with Alan Dershowitz, that “[t]he ethical propriety of doxxing should not be a left-right issue.) Following the Unite the Right neo-Nazi violence in Charlottesville, Twitter users posted photos of white supremacist marchers, many of which were identified, with predictable effects – those identified as neo-Nazis lost jobs, were threatened online, or were shunned by their families. On the other side of the political spectrum, the identities were disclosed of Harvard students who posted an anti-Israel letter, leading to similar effects – job offers revoked, threats to family members, and an asserted chilling effect on free speech. The recent action by the U.S. State Department to revoke student visas adds another level of consequences to what in many cases is constitutionally protected speech.

One way to think about the ethics of doxxing, and the relationship between that practice and the value of privacy, is see it as a way of subjecting people to informal (that is, not part of the formal legal system) methods of accountability. Social and political philosopher Olúfẹ́mi O. Táíwò has been saying this a lot lately online, but it’s really a deep truth about the social function of morality, and plays a prominent role in the moral philosophy of David Hume:

There is an interesting literature on baldfaced lies, but the point I want to develop here from Táíwò is that a society depends for its basic functioning on there being consequences for gross breaches of standards of conduct. He’s not necessarily talking about doxxing, but the general idea is that a society is held together by norms, and that social cohesion depends on enforcement of these norms.

The usual objection here is that informal mechanisms of enforcing social norms are impermissible as a form of vigilantism or mob rule. See, e.g., Jon Ronson, So You’ve Been Publicly Shamed (New York: Riverhead Books 2015); Scott Altman, “Are Boycotts, Shunning, and Shaming Corrupt?,” 41 Oxford J. Leg. Stud. 987 (2021); Waheed Hussain, “Is Ethical Consumerism an Impermissible Form of Vigilantism?,” 40 Phil. & Pub. Aff. 111 (2012); James Q. Whitman, “What Is Wrong with Inflicting Shame Sanctions,” 107 Yale L.J. 1055 (1998). Social sanctions like doxxing, callout culture, canceling, online shaming campaigns, and organized efforts to get someone fired for inappropriate conduct are unruly, unconstrained by norms of fairness and civility, subject to piling-on effects, and subject to biases, prejudices, and personal interests.

Informal social sanctions are unfavorably contrasted with the regularized procedures used by legal institutions to hold wrongdoers accountable. Canadian political philosopher Waheed Hussain puts it this way:

Among the most important values in political morality are procedural values. These values determine how a society should evolve over time. Certain laws, policies, and patterns of behavior may be attractive in themselves, but the processes through which these develop in society may be morally objectionable because they are inconsistent with procedural values. . . . One of the central justifying aims of a liberal democratic social order is to ensure that society evolves in ways that satisfy the requirements of procedural values. A liberal democratic order has many component institutions and practices, including legislatures, elections, markets, judicial review, and so on. Each of these institutions and practices defines various powers, and these powers enable people to influence the course of social life. The order as a whole is justified (in part) because it structures the processes of change in society in ways that satisfy the requirements of procedural values.

To put it more concisely, there’s a right way and a wrong way to do things, including punishing people for anti-social behavior.

The obvious rejoinder to Hussain and others who critique informal sanctions as less orderly than the mechanisms of formal law is: what if formal law is dysfunctional or structurally unjust? In the case of the ICE attorneys, what if the Justice Department, which supervises immigration courts, has decided to prioritize the Trump/Miller/Homan strategy of mass deportations, accompanied by an aggressive, militarized enforcement approach and systematic defiance of court orders? It won’t do much good to go through formal legal channels when they are all captured by an authoritarian leader.

A different version of the “mob rule” critique of social sanctions emphasizes the lack of a consensus on the standards of appropriate behavior that the sanctions are intended to enforce. Táíwò says this in an interview:

Politics is conflictual. There is no consensus worth seeking between segregationists and transphobes and homophobes and the people that want rights and justice for the groups of people targeted by all of those particular kinds of bigotry.

At the level of substantive social policy this seems obviously correct. But it may be possible to reach more modest or localized consensus on procedural norms. Avoiding baldfaced lies, for example, should be something that the left and right can agree on, at least in principle. Maybe for the time being the right is profiting from nurturing a media ecosystem that promotes baldfaced lies, but as the ongoing saga of Pam Bondi and the Epstein files shows, it is not in the long-run interest of either side to promote utter indifference to truth.

Finally, many lawyers believe that informal sanctions are particularly pernicious as applied to lawyers. It’s one thing to call out misbehavior by corporate CEO’s or cops, but lawyers must stick up for the longstanding professional commitment to defend unpopular clients. This is a complex debate – in fact, I recently wrote a whole book about it! – but one response to the assertion of a legal duty to represent unpopular clients is similar to the response to Hussain and others who valorize procedural values and formal law. The lawyer’s professional role is, at least as I see it, primarily justified as a contributor to the sorts of liberal procedural values relied upon by Hussain. Lawyers help ensure that policy decisions are made, and sanctions are imposed, in ways that satisfy the requirements of procedural fairness. But if you believe the whole system is crooked, it’s unclear what reason you’d have to care about the traditional defense of the lawyer’s role. If representing unpopular clients means facing no consequences for defending ICE’s campaign of brutality, then so much the worse for that principle.

I’m not saying I fully agree with this way of thinking, but it does represent an approach to the ethics of lawyers that is not identical with legal-ethics-as-following-the-rules. Agree or disagree with a particular episode of criticism of lawyers, I do think it is important to acknowledge the accountability of the legal profession to the society in which it is embedded. That doesn’t mean anything goes. Doxxing raises concerns about privacy and personal security, and informal social sanctioning campaigns can sometimes spiral out of control and even lead to violence. Please don’t read this as an endorsement of harassing or threatening government lawyers – that’s not the point. The point is, simply, that ethics is largely about accountability to those with whom we are in a normatively significant relationship, and in the case of lawyers, that includes responsibilities to society as a whole. One way of holding lawyers accountable is through formal legal institutions and procedures, but there is a parallel, informal system that plays a role, too.

1. The Code of Conduct for United States judges, by its terms, applies to “United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges.” Immigration judges are Article I judges, part of the Department of Justice’s Executive Office of Immigration Review (EOIR). There is an EOIR policy manual that contains a one-page chapter entitled “Conduct and Professionalism for Adjudicators,” but does not specify any rules of conduct. The complaint form linked from that document says only this: “Judicial misconduct is conduct by a judge that may adversely affect the fair, effective, or expeditious administration of the work of EOIR’s adjudicating components.”