On March 22, the White House issued a Presidential Memorandum titled “Preventing Abuses of the Legal System and the Federal Court” along with an accompanying fact sheet. The memo is addressed to the Attorney General Pam Bondi, and orders her to “seek sanctions against attorneys and law firms who engage in frivolous, unreasonable, and vexatious litigation against the United States or in matters before executive departments and agencies of the United States” and to prioritize enforcement of regulations governing attorney conduct and discipline. The memo singles out and accuses the immigration bar “and powerful BigLaw pro bono” firms for attempting to circumvent U.S. immigration policies by coaching clients to be dishonest when asserting claims for protections under U.S. law. The memo also directs the Attorney General to take all appropriate action to refer for disciplinary action any attorney whose conduct before federal courts or agencies appears to violate professional conduct rules, including rules governing meritorious claims and contentions, and particularly in cases that implicate national security, homeland security, public safety, or election integrity. The Attorney General is also directed to look back at any relevant conduct in litigation against the federal government over the past eight years.
Private law firms will often go up against the federal government in court for a variety of reasons – including to stop regulations that their clients believe to be unlawful or unconstitutional, or to represent individuals or groups who believe their rights have been violated by the government. While it may be frustrating to presidential administrations to have to defend their actions in court, this is a fundamental part of how our government’s system of checks and balances is designed to operate. (During the Biden administration, for instance, dozens of corporations, industry groups, and state attorneys general sued the Biden administration or independent federal agencies, sometimes successfully blocking new regulations from going into effect.) With this directive to the Attorney General, the Trump administration appears to want to threaten law firms away from representing clients who want to exercise this right to challenge government actions.
The Trump administration is also equating lawyers representing clients in immigration court with attempting to violate the law. Immigrants have the right to be represented by a lawyer for cases being heard in immigration court, but, unlike U.S. citizens, they do not have the right to a government-appointed lawyer, which means they must pay for that representation themselves. Because of this, attorneys at other law firms will sometimes volunteer their services free of charge – pro bono – to provide representation to people in immigration court. As with other forms of pro bono representation provided to U.S. citizens, nonprofits, and small businesses who may otherwise be unable to afford legal representation, these services are provided on a volunteer basis and as a public service.
Impact: This memo seems intended to intimidate and deter law firms that could potentially be hired to engage in litigation that challenges the actions taken and regulations issued by the Trump administration, perhaps to keep them from taking such cases, as well as to deter immigration lawyers from representing clients who are asylum-seekers or migrants in removal proceedings, through the threat of retaliation by the Attorney General.