Bill Zapf is a litigator and legal ethics lawyer. His practice encompasses complex civil litigation, white-collar criminal defense, government investigations, and appeals. He has a particular focus and expertise in matters involving legal ethics, including legal malpractice and attorney disciplinary matters.
The reaction to President Trump’s latest memorandum attacking lawyers and law firms has been swift and strong across the legal industry. The memo, issued Saturday, March 22, titled “Preventing Abuses of the Legal System and the Federal Court,” has been condemned widely as a further threat to the rule of law and the role of the courts as a check on presidential power.
For me, though, it raises serious legal ethics issues—especially because it is addressed to the Attorney General, the nation’s top-ranked lawyer, and implicates the actions of many other government lawyers under her command.
Sadly, it’s been no surprise that Trump immediately began using the power of his office to seek personal retribution against his perceived enemies. Back in November, my partner Bill Pittard wrote about the likelihood of such a revenge tour and what it might look like. In his December op-ed in The Hill, my other partner Jon Jeffress called for President Biden to issue preemptive pardons to those most likely to find themselves in Trump’s crosshairs, which Biden did for some likely candidates just before leaving office.
But I don’t know that any of us foresaw how sharply Trump would turn his sights on the lawyers.
First, in February, he turned on Covington & Burling, suspending security clearances of its lawyers and ordering a review of government contracts with the firm, as retribution for the firm’s purported assistance to Special Counsel Jack Smith. Then, he went after Perkins Coie, calling the firm “dishonest and dangerous” for its work on behalf of the Hillary Clinton campaign and in other legal matters, again suspending security clearances and targeting not only the firm’s contracts, but also government contractors who do business with the firm. Perkins Coie quickly won a temporary injunction against the President’s order. Undeterred, Trump then attacked Paul Weiss, this time claiming victory as the firm rolled over, agreeing to rescind its policies supporting diversity, equity, and inclusion, and to donate $40 million in pro bono legal work in support of the President’s initiatives.
This is the President of the United States of America using the power of his office to punish lawyers for representing clients in causes the President doesn’t like. Growing up, watching Presidents from Reagan to Clinton, to the Bushes, and Obama, I never thought I would witness the dystopian nightmare the legal industry is experiencing at the hands of this President.
But on Friday night, it got worse.
On Friday, perhaps frustrated by the Perkins Coie injunction and recognizing he was bumping up against the co-equal Third Branch, Trump decided to threaten any lawyer who goes against him. The memo directs the Attorney General, Secretary of Homeland Security, and other agency heads to take action against lawyers whom he believes engage in misconduct by representing clients against the federal government, including by seeking sanctions for supposedly “frivolous, unreasonable, and vexatious litigation against the United States” (really, unreasonable?) and by referring lawyers for disciplinary action before state bar and other disciplinary authorities.
The message is clear: if you dare go against the Administration on behalf of your clients, be ready to defend yourself against sanctions and threats to your bar license. The President will come after you and your livelihood. You’re better off sitting this one out.
Of course, filing a motion for sanctions against opposing counsel or even a bar complaint against another lawyer have their place when circumstances justify those actions. But that is the point. There is no reason to issue a presidential directive to take such actions if that’s all the President wanted to accomplish.
That’s not what he wants. What he really wants is fear—the same kind of fear that caused a firm like Paul Weiss to cave. The kind of fear that will make it harder for lawyers to represent clients, and harder for clients to find good lawyers to represent them for worthy causes. The kind of fear that will harm our legal system, where disagreements should be resolved by courts based on zealous advocacy by lawyers. And where presidential actions are subject to court review.
Ironically, it clearly would be unethical for a lawyer like the Attorney General to participate in such an effort to intimidate lawyers through threats of sanctions and discipline.
As the Trump memorandum itself maps out, chapter and verse (after all, I’m sure it was drafted by a lawyer), bringing a motion for sanctions “for improper purpose[s]” would itself subject a lawyer to sanctions under Federal Rule of Civil Procedure 11. The same goes for ABA Model Rule of Professional Conduct 3.1, also cited in the memo. As the comments to Rule 3.1 state, “The advocate has a duty to use legal procedure for the fullest benefit of the client’s cause, but also a duty not to abuse legal procedure,” which is exactly what this would be.
But even the threat embedded in the memo violates an attorney’s ethical duties, including if the Attorney General orders lawyers at the Department of Justice to follow it. For example, D.C. Rule of Professional Conduct 8.4(g) explicitly provides that it is professional misconduct to “[s]eek or threaten to seek … disciplinary charges solely to obtain an advantage in a civil matter,” e.g., in a lawsuit against the federal government. And while determining whether a disciplinary complaint was brought “solely” to obtain an illegitimate advantage could be a challenging factual question, the D.C. Bar recognized in Ethics Opinion 210 that threatening a disciplinary action is less likely to have a legitimate purpose. Indeed, devoid of any plausible factual basis, the broad memo appears to be exactly what Rule 8.4(g) is designed to curb.
Trump’s latest memorandum closes with an admonition that “[l]aw firms and individual attorneys have a great power, and obligation, to serve the rule of law, justice, and order.” The same goes for the President, the Attorney General, and the many government lawyers who may be asked to implement the President’s strategy. Let’s hope that those lawyers abide by their ethical duties, just as the President claims he wants.
March 25, 2025
