Rhode Island’s federal judiciary will consider a possible disciplinary proceeding for the U.S. Department of Justice lawyers assigned to an ongoing court fight over subpoenaed medical records for transgender youth treated at Rhode Island Hospital.
The proceedings were jumpstarted by an order filed on June 5, by U.S. District Court Judge Mary McElroy, and cited “the representations made to this Court” by DOJ attorneys.
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McElroy wrote the May 13 order that nullified a DOJ subpoena demanding roughly six years of records from the hospital for young patients prescribed puberty blockers or hormone therapy.
McElroy, who was appointed during President Donald Trump’s first term, wrote in her earlier order that the DOJ had “proven unworthy of this trust at every point in this case.”
Her harshly worded ruling centered on the conduct of DOJ attorneys during a May 12 hearing in Providence. McElroy argued the DOJ had misrepresented facts and misled the court with arguments rooted in bad faith, and that they had shopped for a favorable venue when seeking to enforce the subpoena in a Texas federal court.
She also blasted the department’s timeline of events as summarized in the affidavit of one DOJ official, who wrote that they had not heard from the hospital in months – a timeline contradicted by a late April email thread between Rhode Island Hospital and DOJ officials. McElroy called it “at best misleading.”
“The active judges of the Court will review Judge McElroy’s referral and determine the appropriate course of action, if any, to initiate under the Local Rules,” Frank Perry, chief deputy clerk for the U.S. District Court for the District of Rhode Island, confirmed in an email Tuesday.
As of Tuesday, no proceedings had been scheduled and there was no set timeframe for a decision, Perry wrote.
DOJ spokesperson Natalie Baldassarre responded to a request for comment Tuesday with a June 3 statement from the department’s Civil Division which castigated McElroy’s conclusion that DOJ counsel had been “misrepresenting or withholding information in litigation concerning certain administrative subpoenas.”
“Such accusations against Department attorneys are rare and serious,” the statement reads. “The Department treats them accordingly and is committed to taking all appropriate remedial action where warranted.”
The Civil Division’s statement said it had “thoroughly reviewed the District Court’s allegations” and deemed them without merit.
“Our attorneys did not misrepresent facts, withhold relevant information, or otherwise mislead the Court,” the statement reads. “The Department stands behind its attorneys without reservation and has appealed the District Court’s erroneous order.”
McElroy’s referral for further proceedings falls under District of Rhode Island Local Rule 210(b), which Perry explained allows the court to take a number of actions, including:
- Referring the matter to “an appropriate disciplinary agency,” who should then report its findings to the court.
- Order an investigation by a magistrate judge or specially appointed counsel, who can provide advisory, nonbinding recommendations to the court.
- Notify the attorney of the alleged misconduct and give them a chance to respond either orally or by writing, prior to formal proceedings.
- Formal disciplinary proceedings can begin if “the attorney’s response is unsatisfactory or if there is no material dispute regarding the relevant facts,” Perry wrote, citing the local rule.
The next steps in the proceedings may not be immediately public, Perry said. He added that another local rule, which generally allows for all filings, orders and court matters regarding attorney misconduct to be made public, excludes the preliminary proceedings regulated by 210(b).
“Whether any portion of the matter ultimately becomes public will depend on the Court’s determination regarding disclosure,” Perry wrote. “Accordingly, it is possible that some or all of the matter could become public, but that decision would be made by the Court if and when the circumstances warrant.”
The DOJ subpoena sought records in an unredacted form, including names, birthdates, Social Security numbers, addresses, details about parents or guardians, and clinical documents tied to diagnoses, assessments, intake and informed consent.
The DOJ described the subpoena to the Providence hospital – and similar ones issued to others nationwide – as part of an effort to investigate healthcare providers and hospitals’ potential role or complicitness in potentially fraudulent billing and coding practices for drugs used in hormone therapy and the treatment of gender dysphoria.
The U.S. District Court for the Northern District of Texas — which the DOJ had asked to enforce the subpoena on April 30 — eventually received an initial tranche of redacted records on May 19 from Rhode Island Hospital, once the court specified the records would be kept in camera, or for the court’s custody only, as appellate court cases related to the subpoena play out in the First and Fifth Circuits.
Alexander Castro is a staff writer for the Rhode Island Current.
