Hundreds of lawyers call for ethics probes of attorneys for election fraud claims; are bar charges likely?
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Two former presidents of the ABA are among a group of more than 1,500 lawyers who are calling for ethics probes of lawyers making claims of widespread election fraud.
The former ABA presidents who signed the December letter are Laurel Bellows and Robert Hirshon.
Other lawyers who signed the letter include Laurence Tribe, a professor emeritus at the Harvard Law School; former Massachusetts Supreme Judicial Court Justices Margot Botsford, Fernande (Nan) R.V. Duffly and Geraldine Hines; former California Supreme Court Justice Joseph Grodin; and former Montana Supreme Court Justice James Nelson.
The National Law Journal and Law360 have coverage.
The group Lawyers Defending American Democracy posted the letter and collected signatures.
The letter said a group of election lawyers have made press statements about a widespread pattern of fraud by Democrats without any basis. Then in courtrooms, the lawyers abandon fraud assertions and make speculative claims that judges quickly dismiss.
“A license to practice law is not a license to lie to the public on behalf of a client, whether doing so endangers one individual or the entire body politic,” the letter said. “Indeed, American Bar Association Model Rules of Professional Conduct 4.1(a) and 8.4(c) put lawyers at risk of sanctions for engaging in dishonesty, deceit and misrepresentation—in or out of court. Under Rule 3.1, lawyers filing frivolous claims are also subject to sanctions.”
The letter focuses on these lawyers pressing claims for President Donald Trump or his allies: Rudy Giuliani, Jenna Ellis, Joseph DiGenova, Victoria Toensing and Sidney Powell.
“Mr. Giuliani’s aim is obvious: to fuel Mr. Trump’s campaign to delegitimize the outcome of the election,” the letter said. “Attorneys take an oath to support the Constitution. Lawyers who lie to advance the partisan interest of a politician or any client dishonor the constitutional system they’ve sworn to uphold, the legal profession and themselves.”
The letter also criticizes DiGenova for saying an official who defended voting machines should be “taken out at dawn and shot.”
Law360 spoke with ethics experts last month, who said disciplinary authorities are unlikely to target Trump’s lawyers. Usually, bar counsels are reluctant to police attorney speech. Instead, they typically focus on conduct that harms clients. There is also a fear of making the disciplinary system appear partisan.
One of the experts who spoke with Law360 was Rebecca Roiphe, an ethics professor at the New York Law School.
“It might be frustrating and upsetting to some people, but I’d be very surprised to see these go anywhere,” she said.
The New Jersey Law Journal also spoke with Roiphe for a November article.
“One might argue that by assisting the president in spreading a false narrative about widespread fraud in the election, the lawyers are interfering with the administration of justice. But it is highly unlikely lawyers would be disciplined for that,” Roiphe said.
Bruce Green, a professor at the Fordham University School of Law, added that there is no ethical violation in bringing a losing case.
“The ethical issue is if they bring a claim that’s legally or factually frivolous, or they make factual assertions they did not investigate,” Green said. “It seems like a waste of resources, but if there’s a legal claim to be brought and facts to support it, that’s enough. It doesn’t have to change the election.”
