With the Trump administration warning career lawyers to follow orders even if they have ethical qualms, pressure is building on professional legal associations to take a stance against efforts to upend long-standing norms of public service.
The effort by lawyers inside and outside of the government comes as Trump, in one of his initial executive orders, issued a warning to state and local bar associations suggesting they could be targeted for investigation over their diversity programs. Lawyers who spoke with NBC News said that order came across as a threat to keep quiet or risk consequences.
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As of Tuesday, 16 attorneys signed a letter to leaders at the American Bar Association, the biggest group representing lawyers in the country, calling for it to “take a clear stand against the lawless actions of the Trump administration.”
“The recent actions of this administration have repeatedly violated the Constitution, legal precedent, and the professional rules to which we, as attorneys, are bound,” they wrote, pointing to efforts to unilaterally withhold federal funding, allowing billionaire Elon Musk to access sensitive government databases and various workforce initiatives that may run afoul of civil service protections and contracts, among other actions. “The American Bar Association, as the preeminent professional organization of attorneys in this country, must not remain a passive observer. We urge you to take immediate and concrete steps to fulfill your mission and defend the rule of law.”
Bar associations, which are independent of the government, often handle attorney licensing and can sanction lawyers for misconduct. One high-ranking attorney at a federal agency said such a warning, particularly from state bar associations in places such as Virginia, Maryland and Washington, D.C. — where many attorneys at federal agencies are licensed — would be particularly impactful for career agency attorneys, such as those in offices of general counsel, who are looking for guidance on how to handle ethical quandaries as Trump moves to rapidly implement his agenda.
That attorney said career lawyers throughout the government have so far mostly chosen to stay silent in the face of these directives, which has added to the confusion civil servants feel about whether the orders or workforce regulations they are told to comply with are lawful.
Emails that have been made public show that higher-ups at some federal agencies have communicated with subordinates that these directives, like the “deferred resignation” program, are lawful, but this attorney said they have not explained how that conclusion was reached.
“So all it is, is ‘do it because they told you to do it and they told us to tell you to do it, and we don’t have anything else to tell you,’” this person said. “That’s not close to what the law requires, it’s not close to what is required of us as officers of the court, and it’s not close to what our true clients — the American people — need from us.”
The attorney said it is incumbent upon state bar associations to offer a public reminder to these lawyers of their “ethical obligations,” including professional sanctions they could face for ignoring them. This would give government attorneys pause in administering or greenlighting some of these orders, at least until courts rule on their legality.
“We don’t know where this is going, but the point [is] slow it down so that the law can catch up,” this person said.
But career lawyers have few options if their superiors demand that they carry out orders they believe may be unlawful. While lawyers have ethical obligations to follow the law, they also have an obligation to represent their clients.
“As a career public servant, you can try to refuse, and if you are ordered to do it, your only choice is to resign,” said Doug Letter, a longtime career Justice Department official who left during the first Trump administration.
“As an attorney and member of the bar,” he added, “you certainly can’t engage in internal guerilla tactics.”
On her first full day in office Wednesday, Attorney General Pam Bondi issued a memo that took aim at career attorneys who might think otherwise. She wrote that any Justice Department attorney “who because of their personal political views or judgments declines to sign a brief or appear in court, refuses to advance good faith arguments on behalf of the Administration, or otherwise delays or impedes the Department’s mission will be subject to discipline and potentially termination, consistent with applicable law.”
In previous administrations, some Justice Department offices had an informal policy that allowed lawyers to opt out of cases they were uncomfortable handling.
In the District of Columbia, where many federal government lawyers are licensed, the bar association that oversees lawyers has rules of professional conduct that cut both ways. All states have similar rules.
On the one hand, lawyers should not assist a client “in conduct that the lawyer knows is criminal or fraudulent,” the Washington, D.C., rules say, but on the other, they have to represent a client “zealously and diligently within the bounds of the law.” A lawyer who is carrying out orders is somewhat protected if the action in question involves “a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.”
It is not uncommon for lawyers to face ethics questions; the Washington, D.C., bar association even has a confidential legal ethics hotline. And lawyers can face discipline for ethical lapses. In Washington, D.C., alone, several recent cases have involved lawyers associated with Trump’s attempt to overturn the 2020 election results, including the now-disbarred Rudy Giuliani.
In Virginia, which also has many federal employees, “each lawyer is responsible for his or her own compliance” with professional conduct rules, Emily Hedrick, the state bar’s ethics counsel, said in an email.
Representatives of the Maryland, Pennsylvania and Washington, D.C., bars did not respond to messages seeking comment.
Michael Teter, a former assistant attorney general in Utah who leads The 65 Project, an activist group that sought to disbar Trump-affiliated lawyers who worked on overturning his 2020 election defeat, said his organization is considering ways to highlight the role bar associations can play in slowing down extralegal efforts and encourage them to “take stances pre-emptively but also after actions are taken that will make that point clear.”
“State bar associations could play a significant role, because the Trump administration cannot accomplish most of what it is seeking to accomplish without the support of lawyers. And the bar association can remind lawyers of their ethical obligations and make clear to them that there will be professional discipline if you engage in extraconstitutional, extralegal activities,” Teter said. “It could be a powerful signal and prevent some, not all, but some of the illegal conduct that the Trump administration is promoting.”
There is some internal pushback happening, though some federal officials who sought to counter Trump’s initiatives have been removed. The Washington Post reported Tuesday that internal legal objections to Musk’s wide-ranging upheaval have been raised within at least seven federal agencies.
“They may very well be issuing opinions saying this is unlawful, this isn’t right,” the agency attorney said of lawyers at federal agencies. “And that may be how they feel like they’re complying with their ethical obligations, but those opinions don’t meet the light of day.”
An employee at the Centers for Disease Control and Prevention said the fact that they had not received legal guidance from attorneys within the agency did not indicate that those lawyers were necessarily staying quiet.
“To be clear, I know that they are probably working overtime right now,” this person said. “The fact that they’re not communicating with staff doesn’t really surprise me.”
Meanwhile, outside groups and unions have filed a series of lawsuits seeking to block a number of Trump’s executive orders, workforce changes and a freeze on federal aid.
Last month, a federal judge appointed by President Ronald Reagan blasted Trump’s executive order seeking to end birthright citizenship, a clause of the 14th Amendment, as “blatantly unconstitutional,” asking, “Where were the lawyers?”
“The modus operandi right now is just do everything in the playbook to get things moving … regardless of whether it’s legal or not,” said a U.S. Agency for International Development contractor who was recently let go, adding that officials within their agency were “immediately terminated” after pushing back on the legality of certain directives. “And then don’t ask for permission, just ask for forgiveness later.”
The White House did not respond to requests for comment.
At the Justice Department, one attorney said they believed lawyers within the government were “trying to find ways to get support from external organizations and parties, from unions.”
“We can’t be expected to facilitate what we believe to be an unlawful action,” this person said. “I think that’s why there are people being removed, because they are refusing to comply with what they see as an unlawful or invalid order and what might be violated. … I don’t think it’s an easy decision for anyone to sit there and proceed with advocating for or facilitating any of these policies or memos or etc., when they believe that it is, in fact, potentially unlawful.”
This person added they would be particularly curious as to how many attorneys have contacted their state bar associations seeking advice on how to proceed on many of these matters.
“Pressure on people works,” this person said. “People need their salary, they need to work. They want to retain their position. They also recognize that they have to do what the president and the executive commands them to do.”
Attorneys who served during the first Trump administration were no strangers to having to deal with similar ethical dilemmas. Even a chapter of Project 2025, the policy and personnel handbook authored by a number of Trump allies, dedicated to the Justice Department discussed how career attorneys should be expected to handle such matters.
Despite a long tradition of being independent of presidents, the Justice Department must follow their direction even if it sparks issues for career attorneys, lawyer Gene Hamilton, who served in the first Trump term, wrote for Project 2025.
“This can force line attorneys to take uncomfortable positions in civil cases because those positions are more closely aligned with the President’s policy agenda,” he added. The department will have to make “tough calls” that “must always be consistent with the President’s policy agenda and the rule of law,” he wrote.
Project 2025 also took aim at the American Bar Association, calling for the president to issue an executive order pursuing antitrust measures against it. While Trump has so far not taken that step, the president on Jan. 21 called out state and local bar associations as part of an order calling on his administration to offer a “plan of specific steps or measures to deter DEI programs or principles … that constitute illegal discrimination or preferences.”
State bar associations in California and Massachusetts pushed back on Trump’s order. The president of the American Bar Association, William R. Bay, defended its diversity programs in remarks Monday and pledged “we will not retreat from our goal and objectives in this vital area.”
“I don’t think it was unintentional,” Teter said of the executive order that included bar associations. “It was a warning shot to bar associations, just generally, and [there’s] a desire to make sure that those associations and those disciplinary boards are not policing the work of lawyers who may engage in misconduct.”
The high-ranking agency attorney said in a battle over implementation of its flood-the-zone agenda, the Trump administration has the upper hand over career attorneys who might seek to push back over the legality of various directives. Those lawyers will have to take small wins when they can get them.
“Bunts, singles, hit-by-pitches, passed balls, that’s how you uphold the law in these moments,” this person said. “There will be no home runs in this. The scofflaws are going to be the ones hitting home runs and triples and stand-up doubles — for the time being, at least.”
