In the bushels of misdeeds and outright malarkey surrounding the November election and its ugly aftermath, only one group of malefactors operates under procedures affording strict and dispositive accountability: lawyers.
Politicians, office holders and political consultants who have polluted the political waters with lies in the Biden-Trump contest are not licensed. Their recompense is political victory. Loss devalues them but that’s about it.
Not so with lawyers. They are licensed to practice law. And every state has disciplinary procedures to limit or take away that license. Professional behavior is controlled by “canons of ethics” adopted by state legislatures or state courts that are given force by adjuncts of state courts that act on complaints and can dismiss unfounded charges or reprimand, suspend or disbar.
Continuing legal education requirements of a bar license include ethics subjects.
That said, not much time in bar exam preparation (or in law school) is spent on legal ethics. In New York State, where I have been a proud member of the bar since before the Civil War, the bar exam includes an “ethics question” presenting a set of facts and inquiring how a lawyer should exercise professional responsibility under the posited circumstances.
In the bar review course I took, preparation for the ethics question took under thirty seconds. The instructor said, “whatever it is, you wouldn’t do it.” It’s like other adages: “when in doubt, don’t” and the ever-popular “if you have to ask a question, it’s not kosher.”
Based on made-up conspiracy allegations first appearing in various fabulist, racist and fascist websites and then adopted as fact by Trump and blasted out to his cult via Twitter, Trump’s supporters deeply believed, and still believe, the election was stolen from Trump. (On another front, action must be taken to clean up the evils and dangers of the internet starting with permanently barring Trump from social media sites.)
These false allegations appeared in the dozens of lawsuits the Trump campaign or its fronts brought in both state and federal courts including moronic legal theories to support them. The suits and associated pleadings and motions were filed by lawyers.
The duty of a lawyer who signs legal papers in the federal courts is described in Rule 11 of the Federal Rules of Civil Procedure.
Rule 11 states all legal papers filed by represented parties must be signed by a lawyer and the lawyer is thereby “certifying that to the best of the [lawyer ‘s] knowledge, information, and belief, formed after an inquiry reasonable under the circumstances” that the papers are not being presented “for any improper purpose;” that contentions in the papers are warranted by existing law; and that they have “evidentiary support.”
The rule includes sanctions at the request of opposing parties or by the court on its own motion.
It also provides “[a]bsent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates and employees.”
Most states have requirements similar to federal Rule 11.
All of the Trump cases were filed by lawyers. In dismissing the cases most judges criticized the lawsuits on the law or the facts, or both.
The winning defendants in these cases, if they are still around, must consider disciplinary action against the losing side’s lawyers. While there is a reluctance on the part of lawyers to charge improprieties especially if they won the case and want to leave well enough alone, the winners are officers of the court.
Similarly, judges are reluctant to act sua sponte. After all, they too are lawyers. Not all the cases were foolish excursions into dimwit-land but most were.
Should the attorneys general who joined the Texas attorney general in supporting his attempt to invoke the original jurisdiction of the Supreme Court in suing Pennsylvania because Trump did not like the way it handled the election be disciplined? Absolutely!
The Supreme Court quickly denied its jurisdiction to entertain the case. (Two justices said that the Supreme Court should “take” the case and then dismiss it, an argument only a lawyer would fashion or even understand.) The only defense these attorneys general would have to discipline based on this dumb case is that, in the words of Rule 11, the case was a “nonfrivilous” argument for “the establishment of new law.”
Law had nothing to do with it. They acted because Trump asked them to do so, hoping that “his” appointees to the court would give him a break. He forgot about the independence that comes with lifetime appointments.
Why “must” this discipline occur? Because without the threat of the loss of a “bar card” these gross distortions of the legal system will continue to affront our country in future elections. I concede that this is but a bandaid in the larger problem of massive distrust of our institutions by millions of Americans who want to tear them down, a problem that will take many years and educational initiatives to solve. But it’s something.
Most judges have an allergy to lying. It’s bad enough when witnesses lie. Lawyer liars must be rooted out. Now.
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One last point related to lawyers. I applaud Biden’s appointment of Judge Merrick Garland as our new attorney general. This decision, reminiscent of President Gerald R. Ford’s appointment of Edward H. Levi, a nonpartisan legal scholar, to rebuild the decimated Nixon Department of Justice, is a bold expression of merit as the sole standard for our attorney general. Bravo!