| I. Introduction |
| The Trump administration is waging an unprecedented campaign to subordinate the Department of Justice to presidential will. Over the past nine months, hundreds of experienced career prosecutors have resigned or been fired. Attorney General Pamela Jo Bondi has warned that lawyers who decline to vigorously defend the Administration’s policies based on their own ethical or legal judgment face termination. Deputy Attorney General Todd Blanche has declared the government “at war” with judges who rule against it. |
| The results are visible in courtrooms across the country. Federal judges—including Trump appointees—have admonished government lawyers for misleading statements, evasive answers, and outright disobedience of court orders. The internal mechanisms that once ensured compliance with ethical norms have been dismantled. |
| This Article proposes a remedy. Federal district courts possess the authority—under Federal Rules of Civil Procedure 83 and Criminal Procedure 5(f) and 57(b)—to issue formal orders at the outset of litigation. These orders should notify all counsel, and their supervisors, that they remain bound by state ethical rules, including the duty of candor, and that violations will result in personal sanctions, bar referrals, or contempt proceedings. This approach requires no new legislation. It demands only that courts use existing tools to preserve the integrity of proceedings before them. |
| II. The Legal Framework |
| A. The McDade Amendment |
| The McDade Amendment, 28 U.S.C. § 530B, provides that government attorneys “shall be subject to State laws and rules . . . governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.” Congress enacted this statute to foreclose DOJ’s prior efforts to exempt its lawyers from ethical rules binding all other practitioners. The statute applies to every government lawyer, including the Attorney General. |
| B. The Model Rules of Professional Conduct |
| Every jurisdiction has adopted rules derived from the ABA Model Rules. Two provisions are central here. Model Rule 3.3 prohibits lawyers from making false statements of fact or law to a tribunal or offering evidence they know to be false. Model Rule 8.4 defines professional misconduct to include dishonesty, fraud, deceit, or misrepresentation, and—critically—prohibits lawyers from inducing another to violate the rules or doing so through the acts of another. Supervisors who pressure subordinates to mislead courts are themselves subject to discipline. |
| C. Existing Procedural Authority |
| Federal Rule of Criminal Procedure 5(f), enacted as part of the Due Process Protections Act of 2020, requires district courts to issue an order at the first appearance in every criminal case confirming the prosecutor’s disclosure obligations under Brady v. Maryland and the consequences of violation. This model demonstrates that prophylactic orders reminding counsel of existing obligations are both permissible and effective. |
| Federal Rule of Civil Procedure 83(b) and Criminal Procedure 57(b) authorize judges to “regulate practice in any manner consistent with federal law” provided the alleged violator receives actual notice. Courts thus possess independent authority to issue orders reminding counsel of their ethical duties and the consequences of breach. |
| III. Evidence of Systemic Misconduct |
| A November 2025 report by Just Security documented numerous instances of judicial criticism of government lawyers. The Brennan Center for Justice has catalogued the dismantling of DOJ’s internal accountability mechanisms. Several cases illustrate the pattern. |
| Disobedience of Court Orders. In J.G.G. v. Trump (D.D.C.), Chief Judge James Boasberg found probable cause of criminal contempt after the administration launched deportation flights during a hearing and in defiance of written orders. He described “increasing obstructionism” and “deliberate” and “gleeful” defiance. In the Abrego Garcia litigation, Judge Paula Xinis has signaled contempt proceedings may follow after the government claimed it could not influence El Salvador to return a man it had unlawfully deported—despite having arranged his detention there by agreement. |
| Misrepresentation. In L.G.M.L. v. Noem (D.D.C.), the government attempted to deport unaccompanied Guatemalan minors over Labor Day weekend. DOJ counsel told the court the children were being returned at their families’ request. After Guatemala’s Attorney General disputed this, a junior official appeared to withdraw the claim, acknowledging the government had no supporting evidence. Judge Timothy James Kelly (a Trump appointee) issued a preliminary injunction. |
| In United States v. Talbot (D.D.C.), the government defended a ban on transgender military service by citing studies that, Judge Ana Reyes found, said the opposite of what the government claimed. She wrote that the government’s summaries were “inexplicably misleading” and that “no one summarizing [the sources] in good faith could draw these conclusions.” At a hearing, she accused the government of treating her “like an idiot” and attempting to “gaslight” her. |
| Retaliation for Candor. Government attorney Erez Reuveni was praised by Judge Xinis for his candor in the Abrego Garcia case. The next day, Deputy AG Blanche placed him on administrative leave for failing to follow supervisory directives and not “zealously advocating” for the United States. As the Fourth Circuit observed in a concurrence, “the duty of zealous representation is tempered by the duty of candor to the court . . . and the duty to uphold the rule of law, particularly on the part of a Government attorney.” |
| IV. The Proposal |
| At the initiation of any civil or criminal case, the district court should issue a written order, affirmed orally, informing all parties that: |
- All counsel are bound by the rules of professional conduct of the state in which they are licensed and the state in which they are practicing, pursuant to 28 U.S.C. § 530B.
- Supervisory attorneys who instruct, encourage, or induce counsel to violate these rules are themselves subject to discipline under Model Rule 8.4(a).
- Violations may result in sanctions, referral to the state bar or disciplinary committee, or contempt proceedings.
- Counsel of record must provide a copy of this order to any attorney supervising them; government lawyers must provide a copy to the head of their office or section.
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| Defense counsel and civil litigants should file motions requesting such orders, supported by memoranda documenting the pattern of misconduct and the legal authority for judicial action. If counsel are concerned that such motions will damage their relationship with opposing counsel, they may petition the Chief Judge for a local rule amendment or seek mandatory ethics training requirements that emphasize supervisory liability. |
| V. Anticipated Objections |
| Some may argue that such orders are unnecessary because ethical rules already bind lawyers. But Attorney General Bondi has told DOJ lawyers that their “personal political views or judgments”—including their ethical judgments—must yield to the Administration’s litigation objectives. A judicial order counteracts this pressure by making clear that the court, not the executive branch, will hold lawyers accountable for misconduct in its proceedings. |
| Others may view such orders as judicial overreach. But Rule 5(f) already requires courts to issue prophylactic orders regarding Brady obligations. Extending this approach to ethical duties generally is a modest step, grounded in existing procedural rules and the court’s inherent authority to regulate practice before it. |
| VI. Conclusion |
| The disbarment of Rudy Giuliani and the pending proceedings against Jeffrey Clark demonstrate that bar discipline can reach lawyers who abuse the legal system for political ends. But those proceedings take years. Courts need tools they can deploy now, in real time, to deter misconduct before it occurs and to hold supervisors accountable when it does. |
| The Department of Justice’s client is not the President. It is the United States of America, and its lawyers’ loyalty belongs to the Constitution and the laws they are sworn to enforce. Federal courts must remain a forum where the rule of law prevails over political coercion. The orders proposed here would help ensure they do. |
| This white paper was written by Jon May, Amicus Chair, for Lawyers for the Rule of Law (LFRL.org), a not-for-profit organization organized to protect the foundation of our democracy and protect us all from autocracy. Daniel Arshack, President. |
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