Ethical Considerations for the Justice Department When it Switches Sides During Litigation

• Publication year: 1983
• Citation: Vol. 7 No. 02

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 7, No. 2WINTER 1984

Ethical Considerations for the Justice Department When It Switches Sides During Litigation

I. Introduction

A recent United States Supreme Court case, Washington v. Seattle School District No. 1,(fn1) ("Seattle School District") raises serious ethical concerns regarding the propriety of a government entity changing its position for political reasons during the course of litigation. In this case, the United States repudiated its position as coplaintiff/appellee in the lower courts and aligned itself in the Supreme Court with the appellant State against its former coplaintiffs. During the time involved between the decision of the Ninth Circuit Court of Appeals(fn2) and the switch in sides, no new legislation or court decision had effected any change in law. There was, however, a change in presidential administrations, including a new Attorney General and a new Solicitor General.(fn3) Following the realignment, the Supreme Court denied a United States' motion for expanded time for oral argument, but did allow the Justice Department to file a brief supporting the State.(fn4) The appellee school districts requested that the Court disqualify the Justice Department as counsel for the United States, and that the United States be denied party status.(fn5) The Court did not respond to these requests.

Because the current ABA Code of Professional Responsibility(fn6) ("Code") rarely addresses the government attorney, the conduct of the Justice Department in this situation does not so clearly deviate from the ethical standards of the Code. Yet, the Department's reversal in position and its decision to litigate against its former coparty violates the spirit of the Code and presents the kind of behavior that undermines public confidence in the justice system. The philosophy underlying the Code allows for no distinctions among attorneys.(fn7) Automatic withdrawal should be mandatory from cases in which a shift in political power compels the government to switch sides in a lawsuit.

This Comment briefly discusses the history of the case, and then demonstrates the difficulties in applying the present Code to certain ethical questions that can arise when the government changes its allegiance in the midst of litigation. The ethical propriety of the Department of Justice's actions is examined, and alternatives are proposed for situations in which the United States, represented in court by the Justice Department, switches sides in the same case.(fn8)

II. Washington v. Seattle School District No. 1

In late 1977, the Seattle School Board voluntarily adopted the "Seattle Plan," a mandatory busing program designed to reduce racial imbalance in the school system and avert threatened legal action by various groups claiming unlawful segregation in Seattle.(fn9) Shortly thereafter, a number of Seattle residents formed an organization called the Citizens for Voluntary Integration Committee ("CiVIC"). CiVIC drafted statewide Initiative 350,(fn10) tailored to eliminate mandatory busing for purposes of racial integration.(fn11) On November 8, 1978, the initiative passed, supported by sixty-six percent of the vote.(fn12) Within a month the Seattle School District, joined by the only two other Washington school districts with comprehensive integration programs,(fn13) filed suit against the State in the United States District Court for the Western District of Washington. The school districts challenged the constitutionality of the initiative under the equal protection clause of the fourteenth amendment and won in both the district court and the Ninth Circuit Court of Appeals.(fn14)

The United States intervened and obtained standing as a party plaintiff in the district court in accordance with section 902 of the Civil Rights Act of 1964, 42 U.S.C. section 2000h-2.(fn15) As counsel for the United States, the Justice Department fully participated in the lower court proceedings. Justice Department attorneys examined and cross-examined witnesses, called witnesses, and briefed and argued the case on the merits. Furthermore, Justice Department attorneys participated in numerous strategy councils with the other plaintiffs, and gained access to the work product of other plaintiffs counsel.(fn16)

After the court of appeals' decision, the State petitioned the Supreme Court for review. Prior to argument in the Court, Washington State Attorney General Ken Eikenberry, representing the State, contacted several members of the new Reagan administration, including United States Attorney General William French Smith.(fn17) In his correspondence, Eikenberry expressed his belief that the United States should not continue to align its interests with those of the school districts. In a letter to Lyn Nofziger, Assistant to the President for Political Affairs, and Dick Richards, Chairman of the Republican National Committee, Eikenberry urged the administration to . . . do whatever possible to make sure that the analysis of this case and the decisions about the position of the United States be made by personnel in the Civil Rights Division of the Justice Department and in the Solicitor General's office who are sympathetic to the policies and goals of President Reagan rather than the administration of President Carter.(fn18)

One month after receipt of this letter, the United States repudiated its earlier position as coplaintiff to the school district. The Justice Department filed a brief on the merits as an appellee supporting the appellant State, and also asked for expanded time for oral argument. The Justice Department attorney who had worked on the case since its inception was removed from the case and the case file was given to another attorney in the Appellate section of the Civil Rights Division. The school districts filed briefs in opposition to the United States' motion for expanded argument, and also asked the Court to deny the United States party status in the case.(fn19) The Court denied the motion for oral argument, but simply failed to address the question of party status. Subsequently, the Court upheld the position of the school districts and affirmed the lower court decision.(fn20)

III. Canons 4, 5, and 9

A. Introductory Analysis

Traditionally, conflicts of interest and resulting attorney disqualifications are dealt with under Canons 4, 5, and 9 of the Code.(fn21) The Canons themselves are statements of "axiomatic norms, expressing in general terms the standards of professional conduct expected of lawyers in their relationships with the public, with the legal system, and with the legal profession."(fn22) Each Canon is further divided into Ethical Considerations ("EC") and Disciplinary Rules ("DR"). Ethical Considerations are merely considered "aspirational," while Disciplinary Rules are mandatory and state the "minimum level of conduct below which no lawyer can fall without being subject to disciplinary action."(fn23) Although government attorneys are equally guided by and subject to the provisions of the Code,(fn24) the language appears directed to lawyers involved in more traditional attorney-client roles. Because of this emphasis on customary attorney-client relationships, the provisions of the Code are often difficult to apply in situations involving government attorneys.

DR 4-101(B),(fn25) which prohibits a lawyer from revealing his client's secrets, and DR 5-105(A),(fn26) which mandates that a lawyer decline employment likely to interfere with already existing clients and interests, are the Disciplinary Rules most commonly employed in conflicts of interest cases. Canon 9, which advises against even the appearance of impropriety, is also used in this area.

Canon 4 focuses primarily on cases in which an attorney accepts employment against a former client. The purpose of the Canon is to promote an attorney-client relationship of trust and candor, public confidence in the legal profession, and an efficient system of justice.(fn27) Ethical deviations thereunder are measured by determining whether the matters embraced by the adverse representation are "substantially related"; if so, then there is an irrebuttable presumption that confidences had been disclosed in the earlier representation.(fn28) The presumed disclosure of confidences coupled with the adverse representation violates DR 4-101(B). Before the "substantial relationship" test is reached, however, an attorney-client relationship must be shown to have existed in the earlier representation.(fn29) Furthermore, the presumption of knowledge extends to all members of the firm of the attorney who previously represented a now adverse client.(fn30)

Canon 5 concerns the duty of loyalty owed by an attorney to his client. EC 5-1 states that the professional judgment of an attorney should be exercised solely for the benefit of his client, free of compromising loyalties and influences. Most conflict of interest cases employing the Disciplinary Rules of Canon 5 arise out of a concurrent representation by a lawyer or his firm of two adverse clients.(fn31) When the relationship between an attorney and both clients is a continuing one, the adverse representation is considered prima facie improper.(fn32) The premise of this assertion is the oft-quoted biblical maxim that "no man can serve two masters,"(fn33) formalized in DR 5-105(A).(fn34)

Canon 9 reflects the bar's concern...