Saying ‘No’ is not client betrayal

Sally Yates’ refusal to order the Department of Justice to defend Donald Trump’s immigration/refugee ban was decried as betrayal. These attacks on this career prosecutor misunderstand a lawyer’s fundamental duty and the specific role the Attorney General plays.

“Betrayed.” Acting Attorney General Sally Yates said “no” to President Trump and refused to order the Department of Justice to defend the immigration/refugee ban. This was decried as an act that “betrayed” the Trump administration, and stood as “a further demonstration of how politicized our legal system has become” and an instance of “people refusing to enforce our laws ….”

These attacks on this career prosecutor misunderstand a lawyer’s fundamental duty and the specific role the Attorney General plays.

Lawyers say “no” to clients all the time. We tell clients that a particular claim or defense can’t be raised or that an argument won’t be presented. Our duty is to the client within limits set by law. There is no principle that says a lawyer must (or may) do whatever the client wishes and defend any position no matter how unconstitutional or unlawful.

Indeed, the Rules of Professional Conduct sometimes require us to tell the client “no.” We cannot lie or present false evidence to a court, and we are also forbidden from following a superior’s orders when what the superior is demanding is clearly unethical.

The misunderstanding of the lawyer’s role is even more profound here because it is not necessarily the case that Donald Trump and his administration are the “client” of the Attorney General. As one scholar wrote, “[t]he relationship between the Attorney General and the President … is to place the Constitution and the law above policy and politics.” And as former Attorney General William Barr explained, even though the attorney general is a counselor to the president and a subordinate in terms of how policy is set, “the attorney general’s ultimate allegiance must be to the rule of law.”

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Jules Epstein and Harwell Wells are Professors at Temple Beasley School of Law.