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Election Fraud Cases Sow Doubts About Legal Profession’s Future

Sept. 14, 2021, 10:45 AM
https://news.bloomberglaw.com/us-law-week/election-fraud-cases-sow-doubts-about-legal-professions-future

Courts came down ‘hard’ on attorneys who filed frivolous lawsuits

Fraud claims show how fragile judiciary has become

Penalties and discipline against a dozen attorneys over Trump-fueled election challenges probably won’t discourage similar fraud suits in the future, legal experts say.

Lawyers behind dismissed cases in several states have been cited for violating professional standards requiring candor in the courtroom and barring the filing of suits not backed up by fact or law.

The repudiation of the “unsubstantiated claims was a reassuring validation of the rules as courts have historically applied them,” said Charles Geyh, a legal and judicial ethics professor at Indiana University’s Maurer School of Law.

Courts rose to the occasion, Geyh said, but the discipline might not be enough to stop lawyers from being involved in similar challenges in the future.

No one’s been disbarred yet despite calls from some for severe discipline, especially after the Jan. 6 Capitol riot by Donald Trump supporters energized by his claims of a stolen election. Sanctions range from a temporary license suspension for Rudy Giuliani to sharply worded judicial dressing downs and orders to pay court costs and other fees.

Election Suits
More than 60 lawsuits alleging election fraud were filed in states including Pennsylvania, Texas, Georgia, Arizona, and Michigan. Most cases were dismissed quickly, with judges citing the lack of legal and factual evidence to back up the claims,

The legal community called for sanctions for the attorneys involved, including “celebrity” lawyers like Giuliani—a former Trump confidant, New York mayor, and Manhattan U.S. attorney—and trial lawyer Lin Wood. Most others, however, weren’t known beyond their own states.

Investigations by bar groups and courts on lawyer discipline can take several months or longer, but they proceeded unusually fast in the Trump election-fraud cases.

A New York state appeals court temporarily suspended Giuliani’s license in June followed by the D.C. Court of Appeals in July. Courts also handed down decisions in Colorado and Michigan by the end of August.

Court reactions were speedy and encouraging, said RonaldMinkoff, chair of Frankfurt Kurnit Klein & Selz’s professional responsibility group. Minkoff submitted a complaint over Giuliani to the New York Attorney Grievance Committee on behalf of several lawyer groups and attorneys earlier this year.

Judges wrote lengthy opinions expressing outrage and raising alarms about harming democracy. But when it came to discipline, they fell back on the principles of being a lawyer.

“Plaintiffs’ attorneys have scorned their oath, flouted the rules, and attempted to undermine the integrity of the judiciary along the way,” U.S. District Court Judge Linda Parker of the Eastern District of Michigan said Aug. 25 in a 110-page ruling.

“As such, the Court is duty-bound to grant the motions for sanctions,” Parker said when she ordered Trump campaign lawyer Sidney Powell, Wood, and seven other attorneys to pay the other side’s attorney fees.

The defendants submitted requests Sept. 8 for more than $204,000 in fees.

Two lawyers in a Colorado district court lawsuit also were ordered in August to pay the defendant attorneys’ fees over bad-faith claims.

Additionally, Texas Attorney General Ken Paxton is under investigation for alleged ethical violations relating to lawsuits he filed contesting the results of the 2020 presidential election.

Fitness Standards
The sanctions meted out in the election fraud cases may have been less than expected or warranted, experts say.

Lawyers could be emboldened to file additional lawsuits filed because “the sanctions aren’t that huge,” said Richard Painter, a professor at the University of Minnesota Law School in Minneapolis.

Bar associations need to step in and take away the licenses of attorneys who try to cast doubt on the election outcome by alleging facts that don’t exist, said Painter, who was chief White House ethics lawyer in the George W. Bush administration.

Marissa Delinks, an attorney with Hinshaw & Culbertson in Boston, said that based on Parker’s findings in the Michigan case, it’s “understandable” that she referred the lawyers to their disciplinary boards. It’s surprising that the judge in the Colorado case didn’t “do the same based on his findings,” Delinks said.

Courts penalized attorneys for a lack of candor in the courtroom and for filing frivolous suits not backed up by fact or law. Those violate ethics guidelines based on ABA Model Rules 3.1, 3.3, and 8.4. The rules focus on the notion of honesty in the practice of law, violations of which aren’t uncommon in attorney discipline cases.

A lawyer’s false statements “erodes the public’s confidence in the integrity of attorneys admitted to our bar and damages the profession’s role as a crucial source of reliable information,” the Supreme Court of New York, Appellate Division, First Department said in Giuliani’s case.

Such violations also question the fitness to practice, Judge Parker said in referring matters to disciplinary authorities where individual lawyers are licensed.

Potential Impact
Some attorneys still face possible disbarment or additional lesser sanctions. But ethics experts are wary of what impact the response by the judiciary and any professional fallout will have on attorneys going forward.

For those sympathetic to Trump, “this will simply expand the frontier of polarized partisan combat to include the legitimacy of a judiciary that the former president has indicted for failing to do the right thing,” Geyh said.

John Dean, the former Nixon White House counsel who went to jail and was disbarred over the Watergate cover-up, praised the actions of the courts, but questioned whether bar associations, especially, would follow up.

“Post-Watergate there was a national effort, lead by the American Bar Association, to address legal ethics. It was effective,” Dean said. In that era, the ABA required all accredited law schools to teach ethics, for all lawyers to pass a national ethics bar exam, and all states bars adopted updated codes of professional responsibility, he said.

Dean questioned whether state and federal bars now would address ethical problems. The Trump administration “pushed legal ethics into the trash can and today lawyers get away with whatever they think they can. This self-regulating profession is no longer self-regulating,” Dean said.

To contact the reporter on this story: Melissa Heelan in Washington at [e-mail]

To contact the editors responsible for this story: Seth Stern at [e-mail]; John Crawley at [e-mail]

https://news.bloomberglaw.com/us-law-week/election-fraud-cases-sow-doubts-about-legal-professions-future