Is Acting Attorney General Sally Yates Subject to Discipline?

Acting Attorney General Yates Refuses to defend President Trump’s Executive Order because she was not persuaded it was lawful. Trump later fires her – apparently the first time since Richard Nixon’s Saturday Night Massacre. Short news clip is hyperlinked at first bullet point.

Who was her client? Rule 1.13 suggests President speaks for United States. Some courts and commentators have argued that the client is the public.

Do the Rules generally obligate lawyers to follow client instructions on goals? Rule 1.2 (a) Rule 1.2 suggests she should follow client’s instructions regarding objectives of representation

What if the lawyer believes the instruction is unlawful? Rule 3.1 Rule 1.2 (d)

Does Yates make an argument under Rules 3.1 or 1.2(d)? From the Acting Attorney General’s Letter: DOJ Civil Division lawyers are charged with advancing reasonable legal arguments that can be made supporting an Executive Order. But my role as leader of this institution is different and broader. My responsibility is to ensure that the position of the Department of Justice is not only legally defensible, but is informed by our best view of what the law is after consideration of all the facts. In addition, I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right. At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful. She is not arguing that legal arguments for the Executive Order are frivolous under Rule 3.1 or that she would be assisting the government “in conduct that the lawyer knows is criminal or fraudulent.” Moreover, under Rule 1.2(d) a lawyer may “assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.”

Could she advise the President she believes the Executive Order should not be defended? Rule 2.1 Yes

Could she withdraw from defending the Executive Order in Court? Rule 1.16

Does the lawyer’s role permit her to follow her conscience? Modern dominant conception Traditional conception Dominant conception? Must follow. Traditional – Canon 1.15 last sentence “conscience”.

Is the Attorney General Different? Who is the client? President The Law The Public Good One Senator’s View Link is to Jeff Sessions questioning Yates and arguing that the Justice Department has a higher obligation to the law than the President.

Is Acting Attorney General Yates subject to discipline? Probably under Rule 1.2 (a) unless we believe that the Attorney General has different obligations.