Zealous Doesn't Mean Lawless
Last week a Justice Department lawyer committed an unpardonable sin: He admitted that the deportation to El Salvador of Kilmar Armando Abrego Garcia should not have occurred. Abrego is originally from El Salvador and is protected by a withholding of removal order, based on his having established a credible threat of harm if he is returned to El Salvador. That means he should not have been removed from the United States to El Salvador. The DOJ lawyer representing the government at a district court hearing on the removal of Abrego admitted as much:
[DOJ Attorney Erez] Reuveni said he had raised questions with U.S. officials about why the federal government could not bring back Abrego Garcia but had received no "satisfactory" answer. He acknowledged what he called an "absence of evidence" justifying Abrego Garcia's detention and deportation.
The district court concluded that the government had, in fact, acted without legal basis when it arrested Abrego and sent him to a El Salvadoran prison notorious for mistreating prisoners, which is holding deportees under contract with the United States.
But the DOJ lawyer made the mistake of conceding, under questioning by U.S. District Judge Paula Xinis, that he had been frustrated in his attempts to obtain information from the government justifying the contention that Abrego was a member of the violent gang MS-13. (Politico reported that Reuveni seemed “noticeably unenthusiastic about the government’s position” and that he said he had been rebuffed in his efforts to obtain more information.) He asked the court to give the government one more chance to make the showing that the deportation was permissible. The judge noted that “good clients listen to their lawyers.” The district court ordered Abrego’s return, calling the deportation “wholly lawless.” The Supreme Court subsequently issued a temporary stay of the district court’s order.
For this conduct, Deputy Attorney General Todd Blanche praised the lawyer for doing the best he could with a set of bad facts at the hearing . . . no, of course I’m kidding – he suspended Reuveni for “failing to follow a directive from your superiors.” Elaborating on this action, Attorney General Pam Bondi had this to say on Fox News Sunday:
“He was put on administrative leave by Todd Blanche on Saturday. And I firmly said on Day 1, I issued a memo that you are to vigorously advocate on behalf of the United States. Our client in this matter was Homeland Security — is Homeland Security. He did not argue. He shouldn’t have taken the case. He shouldn’t have argued it, if that’s what he was going to do. He’s on administrative leave now,” she said. . . . “You have to vigorously argue on behalf of your client.”
Reuveni’s supervisor, August Flentje, was also placed on paid administrative leave for (somehow – it’s unclear) failing to exercise his supervisory responsibilities over Reuveni.
Bondi’s “Zealous Advocacy” Memo
Bondi had in fact issued a memo, on February 5, 2025, setting out her expectations for DOJ lawyers. I wrote about it around the time it came out, and observed that, on its face, it said several things that were fair characterizations of the ethical obligations of government lawyers:
“[A]ttorneys are expected to zealously advance, protect, and defend their client's interests.” Yep, that’s true of government lawyers as well as lawyers representing private parties.
Who decides what are the interests of the United States? “Those interests, and the overall policy of the United States, are set by the Nation's Chief Executive . . ..” This is more controversial, but I agree with it as well, following a line of scholarship by former high-ranking government lawyers.
“The responsibilities of Department of Justice attorneys include . . . vigorously defending presidential policies and actions against legal challenges on behalf of the United States.” Agreed, although I don’t know that we needed to add “vigorously” to “zealously” in the list of approved adverbs for litigators, but whatever.
“The discretion afforded Department attorneys entrusted with those responsibilities does not include latitude to substitute personal political views or judgments for those that prevailed in the election.” This is also controversial, but it is part of what has come to be called the Standard Conception of legal ethics. As an early, influential paper states the Standard Conception, “[o]nce a lawyer represents a client, the lawyer has a duty to make his or her expertise fully available in the realization of the end sought by the client, irrespective . . . of the moral worth to which the end will be put or the character of the client who seeks to utilize it.”
The memo goes on to threaten discipline, including possible termination, for any lawyer who refuses to advance good-faith arguments on behalf of the Administration “because of their personal political views or judgments.”
Political Views, Conscience, and the Law
One of my longstanding pet peeves is the sloppy use of the term “legal ethics” to refer to both (1) the rules of professional conduct and other law governing lawyers and (2) the extremely interesting issue, as a theoretical matter, of the relationship between the duties of lawyers and conscience, morality, personal integrity, and other evaluative commitments that a person brings to a professional role. The rhetorical strategy of Bondi and Blanche seems to be characterizing the lawyer’s conduct at the district court hearing as motivated by conscience or ideological disagreement. They can then characterize as insubordination anything the lawyer does that does not “zealously” or “vigorously” advance the interests of the government as, presumably, Trump and Bondi define it.
Lawyers appearing before a court, however, have tons of obligations that are not reducible to matters of conscience, and certainly do not reveal the lawyer’s political views. Moreover, while some professional conduct rules are under-enforced, frequently worked around, or not particularly well known to lawyers and judges, that’s not true of the rules on candor to the tribunal. I always tell my students that judges take this rule extremely seriously, and therefore lawyers must as well. If a judge says to you in a motions hearing, “Counsel, can you tell me as an officer of the court that X?” then you know you’re in a world of hurt if you try to pull a fast one.
Rule 3.3(a)(1) provides:
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 is most emphatically not a matter of conscience. This is a legal rule with real teeth. A lawyer who is careful not to violate Rule 3.3 is not exercising moral discretion or engaging in some kind of ideologically driven subversion effort; he is simply following the requirements of law.
Now consider the moment in the hearing where Judge Xinis asked Reuveni whether the government knew that Abrego could not be removed to El Salvador. If he knew that the government knew about the order withholding removal to El Salvador but didn’t care, and he said “the government did not know,” then in the words of George W. Bush, he would be in deep doo-doo. Lawyers sometimes try to finesse this problem by not asking questions of their clients that would reveal information that, once known by the lawyer, would put them on the spot in court. But this strategy is risky, and also a breach of the duty of competent representation, which requires learning all the facts needed to represent the client effectively.
In all likelihood, the relevant federal agencies – Homeland Security and Justice – knew that any lawyer defending the government’s actions would have this duty of candor to the tribunal and therefore kept Reuveni in the dark. Hence his frustration.
What is a lawyer to do in this situation? If the client will not provide information necessary to represent the client competently at an upcoming hearing, the lawyer can (1) keep pestering the client, (2) seek a continuance of the hearing, and use the additional time to keep pestering the client, (3) withdraw from the representation, or (4) state truthfully at the hearing that the client is being unresponsive to repeated requests for information. Reuveni did the latter, and while one might quibble with using words like “frustrated,” he was simply telling the truth about the situation he was in.
Yet Bondi and Blanche see this as some kind of act of insubordination. They seem to have fallen in love with the ideal of zealous advocacy, without remembering that the duty of zealous advocacy is comprehensible only with the second half of the phrase, “. . . within the bounds of the law.”
Not Zeal Alone
It's hard to think of a single word that has done more mischief in the law of lawyering than “zeal.” It only makes a few appearance in the current rules of professional conduct, which in all states are based on the ABA Model Rules. There are three mentions of zeal or zealousness in the Preamble to the Model Rules:
“As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system.” Para. [2].
“A lawyer's responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious. Thus, when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done.” Para. [8].
“Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer's obligation zealously to protect and pursue a client's legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.” Para. [9].
And “zeal” makes an appearance in Comment [1] to Rule 1.3, which states that a lawyer must act with diligence in representing a client. The comment elaborates:
A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See Rule 1.2. The lawyer's duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.
Notice something about all of these references to zeal? It is always balanced by a reference to either the rules of the adversary system (Preamble para. 2), justice (Preamble para. 8), the bounds of the law (Preamble para. 9), or professional discretion not to press for every advantage the client may seek (Rule 1.3, cmt. [1]).
These limitations on zealous advocacy trace back to the origins of the term in legal ethics. (I wrote about this in my chapter on the Restatement of the Law Governing Lawyers for a book commemorating the 100th anniversary of the American Law Institute.) At the turn of the 20th century, the ABA was a social club for elite lawyers with little influence on the profession generally. In 1905, President Theodore Roosevelt gave a commencement address at Harvard University in which he criticized the “most influential and most highly remunerated members” of the legal profession for providing assistance to clients to enable them to “evade the laws which are made to regulate in the interest of the public the use of great wealth.” Elite lawyers panicked. Their fear was that progressive legislation would extend to regulating the legal profession to ensure that they were not assisting clients in evading the laws, so they decided to get out ahead of legislation by making a big show of supporting professional self-regulation. The result was the 1908 Canons of Ethics, the first official statement from the organized bar of the principles that should govern ethical legal practice. (The Canons borrowed the idea of “warm zeal” from lectures by University of Pennsylvania law professor George Sharswood, which had formed the basis for an 1887 code of ethics in Alabama.)
The idea of zealous advocacy, however, was front and center in the ABA’s 1969 Model Code of Professional Responsibility, the first document addressing legal ethics that was adopted and enforced in a systematic way by state courts. The Code was divided into Canons, each dealing with discrete topics in professional regulation, and each stating general principles. The principle defining Canon 7, on ethics in litigation, was:
A Lawyer Should Represent a Client Zealously Within the Bounds of the Law.
A comment on Canon 7, EC 7-19, explained that this principle harmonized the duty to the client and the duty to the legal system:
The duty of a lawyer to his client and his duty to the legal system are the same; to represent his client zealously within the bounds of the law.
Another comment, EC 7-39, clarifies that lawyers and judges have coordinate roles within the adversary system, with the ultimate objective being the fair and impartial resolution of disputes:
In the final analysis, proper functioning of the adversary system depends upon cooperation between lawyers and tribunals in utilizing procedures which will preserve the impartiality of tribunals and make their decisional processes prompt and just, without impinging upon the obligation of lawyers to represent their clients zealously within the framework of the law.
Zealous advocacy, under the Model Code, was therefore a means to an end, not an end in itself. Bondi and Blanche have made the classic mistake of confusing the client’s interests with what the client is entitled to under law.
The Model Rules did not attempt to make zealous advocacy into a duty. The references in the Preamble and comment to Rule 1.3 show that it remains as an ideal or an aspiration only. But it has a life of its own in the folklore of legal ethics, and despite not being an enforceable legal duty, “zealous advocacy” is the most common shorthand I hear from lawyers to describe their duties. If they would only remember that second bit, “within the bounds of the law.”
Knock-On Effects
It’s unclear whether doubling down on the imperative of zealous advocacy, while omitting the bit about “within the bounds of the law” represents an actual strategy or whether it reflects the reality that everyone in the Trump Administration is performing for an audience of one. Rhetoric, performance, acting tough, and never backing down are imperatives that play a much more important role than long-term thinking, discipline, and staying in control. There are several reasons to think that beating up on effective lawyers (Reuveni had very recently been promoted to acting deputy director of the Office of Immigration Litigation on the basis of having done a good job defending the administration’s immigration agenda) will be detrimental to the long-term success of legal defenses of these policies.
The most obvious is, who in their right mind would want to work in this environment? The New York Times reports the entirely unsurprising fact that civil litigation departments with the DOJ are understaffed, overworked, and frantically running around the country trying to put out fires. There was a revealing exchange at the hearing on the EO against Jenner & Block:
“The Department of Justice has a lot of lawyers,” [the district judge] asked. “Why is this all on you, Mr. Lawson?”
Straightening his glasses, he replied that none of his colleagues were available. “I, frankly, was supposed to be in Florida, but here I am,” Mr. Lawson said.
“I don’t find that much of an answer,” the judge replied. Shortly after, he ruled against the Trump administration.
I have no information about whether Reuveni and his supervisor will serve their sentence of internal exile, do whatever penance is required of them by Bondi and Blanche, and return to service defending the administration’s actions. But it would be tough to blame them, despite their years of dedicated government services, for deciding that this would be a good time to dust off their resumes. If a bunch of other experienced lawyers, who know the ins and outs of complicated regulatory schemes, start making alternate career plans, simple lack of staffing will start to become a problem for the DOJ.
A more subtle problem, but related to the aggressiveness of the administration’s agenda, is that credibility is the most important thing a lawyer has when appearing before a judge, but that credibility is fragile. Playing games to avoid revealing information, stonewalling a reasonable line of questioning, and (God forbid) actually making a misrepresentation of law or fact will tank an advocate’s credibility with the court. Pushing DOJ lawyers to engage in mad-dog tactics, all in the name of zealous advocacy, risks undermining the credibility of all government lawyers. In his treatise on litigating with the government, Professor Greg Sisk observes that courts often have higher expectations for government lawyers appearing before them. He quotes former D.C. Circuit Judge Patricia Wald as summarizing these expectations as the Five C’s:
. . . a higher level of competence, greater candor with the court, credibility by virtue of the attorney’s enthusiasm for and confidence in the position advocated, a greater concern for civility, and consistency in Government positions taken before the courts.
Patricia M. Wald, “For the United States”: Government Lawyers in Court, 61 Law & Contemp. Probs. 107, 109–10, 119–27 (Winter 1998).
If Lawyer A for the DOJ seems to be getting close to the line of a violation of the duty of candor to the court, or engages in intemperate writing or makes disrespectful statements (as Judge Boasberg admonished the lawyer representing the government in the Alien Enemies Act litigation), there is a risk to the credibility of not only Lawyer A, but Lawyers B, C, D, . . . N, in other cases in which the government is a party. The smart, strategic thing to do would not be to burn through that credibility unnecessarily. There are plenty of close calls in litigation, and there’s a greater likelihood that they’ll go your way if the judge isn’t starting from a presumption that you are playing games.
A bit less zeal would be beneficial for the government’s position, if that’s what they cared about. So far, however, senior Justice Department leadership appears to care much more about the dominance games, constant attacking, and gratuitous cruelty favored by Trump. Knowing that, we should not be surprised to see many more DOJ lawyers heading for the exists.