The Duty of Competence (Model Rule 1.1)
Many lawyers skip over this first of the Modern Rules because it seems to them to be self-evident or tautological — of course a lawyer must be competent because one or more state bars has admitted them to practice. In fact, the rule prescribes several aspects of what constitutes competence, which go beyond mere knowledge of the law and include the responsibility to exert reasonable diligence in investigating facts and other matters relevant to the representation. This means that the lawyer may not simply take the client’s word for key factual issues relevant to the representation.
“Rules of Engagement” (Model Rule 1.2)
The stock in trade of the lawyer is providing advice to clients on legal matters, especially in situations where the client’s proposed or actual course of conduct verges into questionable areas of legality. The lawyer is also expected to be loyal to the client’s interests — this is at the root of the ethical obligations of independence from considerations other than the client’s interest and avoidance of conflicts of interest. Further, the client has the right to determine the scope and objectives of the representation, and the lawyer is obligated to follow that direction even if the lawyer may disagree. As our colleague William W. Horton has stated on many occasions: “the client is not always right, but the client is always the client.”
The issues surrounding the limits of loyalty to clients become troubling when a lawyer and/or firm is concerned that they may face potential legal exposure. In these situations, the lawyer may seek to condition or couch legal advice with a view to limiting prospective liability. That, in turn implicates considerations of whether advice is in fact competent, whether the legal advice may facilitate unlawful conduct by a client, or whether there is a conflict between the lawyer and client because the lawyer’s personal interest (in avoiding liability) may “materially interfere with the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that should be reasonably pursued on behalf of the client.”
There are also recurrent questions about client expectations concerning the relationship with counsel. Some clients may consult with the lawyer in the hopes of securing an “insurance policy” covering their conduct and may or may not share sufficient information with the lawyer to create a true reliance interest. In other contexts, a lawyer may be consulted by a client who is seeking to use the lawyer’s name or reputation to secure an advantage in a dispute — for example, wanting to engage the lawyer simply to write a threatening letter in the hopes that further action will be unnecessary.
While the Model Rules provide guidance in these circumstances, professional judgment is the critical factor that should determine the lawyer’s role. Issues such as the reputation and trustworthiness of the client and the client’s motivations for seeking the advice of a lawyer are relevant in these circumstances. The client that regards the lawyer as a “blunt instrument” to serve the client’s base purposes or attempts to characterize the lawyer’s professional advice in a manner that is self-serving is likely to create problems in the future, particularly if the outcome of the engagement for the client is unfavorable.
The Duty of Communication (Model Rule 1.4)
As with Model Rule 1.1, consideration of this rule is given short shrift because everyone expects the lawyer will communicate with the client on matters material to the representation. The rule, for our purposes, imposes a requirement of communication with the client on the means by which the client’s objectives in the representation are to be met — and this may include discussion of tactics and the merits of claims that the client wishes to see pursued in litigation.
The Lawyer as Advisor (Model Rule 2.1)
Compliance with Model Rule 2.1 may prove to be very confusing to practitioners in that it appears to conflict with the rule concerning the scope and objectives of the engagement (Model Rule 1.2) and does not provide firm guidance as to the lawyer’s responsibilities. The rule states:
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.
On its face, this would seem to imply that the lawyer has some responsibility to counsel the client candidly on the wisdom of its judgments and objectives in a litigation matter, and should not avoid unpleasant subjects, but the commentary also includes the note that the lawyer’s advice should “sustain the client’s morale.” Of course, as noted previously, the client is not bound to accept this advice and may insist on pursuing a course of action that the lawyer may deem unwise, which the lawyer must honor, at least so long as it does not involve furthering fraudulent or criminal conduct or would cause the lawyer to violate other rules. Moreover, the commentary on the rule creates a further conundrum in that the lawyer is not supposed to offer advice unless asked by the client, but may be obligated by Rule 1.4 nonetheless to advise the client on alternatives to litigation.
The Lawyer’s Role as Advocate (Model Rule 3.1)
Model Rule 3.1 defines the lawyer’s obligations in maintaining a cause of action on behalf of a client. The rule provides that:
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.
As with the other rules discussed above, the commentary is hedged, rather than providing a bright line standard for conduct. While a lawyer is enjoined from abuse of the legal process by filing truly frivolous cases, the comments acknowledge that the law is often not clear and is not static; therefore, a lawyer may exercise professional judgment as to the ambiguities of the law and prospect of change in evaluating whether a cause of action has an appropriate basis. Further, the rules provide that a cause is not frivolous simply because the facts necessary to support it have not been fully adduced or may be revealed through discovery, provided that the lawyer has a good faith belief that the arguments advanced have merit, even if the client may not ultimately prevail.
This latter proposition raises the question of whether the good faith belief of the lawyer is sufficient to sustain a claim, even if the belief is objectively unreasonable. In other words, does a lawyer have available a “Doobie Brothers Defense” based on “what a fool believes?” In a recent case in federal court in the District of Columbia,counsel for the plaintiff engaged in conduct that obstructed deposition testimony such that the deposition could not be completed within the time frames set for discovery. In response to a motion to compel further deposition, the plaintiff’s lawyer asserted in a motion for sanctions that her belief was that defense counsel had in fact impeded the deposition with unprofessional and disrespectful conduct, by acting agitated and aggressive, becoming “unhinged,” and “baselessly threatened sanctions against the witness and plaintiff’s counsel.” The trial judge reviewed the video recording of the deposition and concluded that the plaintiff’s counsel’s version of events was completely inaccurate and meritless, finding defense counsel was calm and his voice controlled during the deposition. The judge granted defense motions to compel further depositions and to sanction plaintiff’s counsel and issued an order for counsel to show cause why she should not be sanctioned under Federal Rule 11(b)(3) for impugning defense counsel’s character without evidentiary support. In response plaintiff’s counsel apologized, but contended that her allegations were supported by her “perception” and “memory” of the events and that the videotape failed to capture the angry face and aggressive body language of defense counsel. The judge was unimpressed and held that if counsel had truly viewed the video, she would have seen that there was no support for her allegations and therefore imposed Rule 11 sanctions on her and her firm in addition to attorneys’ fees.
Duties of Candor (Model Rules 3.3 and 3.4)
A fundamental element of the adversarial process for resolving disputes is that a lawyer is expected to be an advocate for the interests of his or her client. The Preamble to the Model Rules specifically states: “when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and assume that justice is being done.” Nonetheless, there are limits to the tactics and strategies available to counsel in litigation, most notably Model Rule 3.3, requiring candor toward a tribunal, and Model Rule 3.4, requiring fairness to opposing parties and counsel.
Model Rule 3.3 proscribes making a false statement of fact or law to a tribunal or offering evidence the lawyer knows to be false, even if the client urges its presentation to the court.If the lawyer becomes aware that false evidence has been offered, he or she is obliged to take remedial measures, including disclosure to the tribunal. Model Rule 3.4 parallels this in that it prohibits a lawyer from alluding to any matter that may not be supported by admissible evidence, or commenting on the credibility of a witness without evidentiary support.
Compliance with these sometimes conflicting obligations can create delicate problems for advocates, particularly in situations where there are strong public interests at stake in the litigation. The comments to Model Rule 3.3 emphasize that the lawyer’s actual knowledge of falsity is crucial and permits room for discretion in the presentation of evidence even where the lawyer has a reasonable belief the evidence may be false. The obligations under Model Rule 3.3 also reach the making of legal arguments based on evidence known to be false. At times, counsel may conclude that the presentation of an alternative theory (though not “alternative facts”) of a case or the shading of certain disclosures is essential to an effective presentation, but this course of action carries significant risks if the opposing party exposes improper conduct or a judge concludes that counsel has engaged in active deception.
Truth and “Truthiness” (Model Rule 4.1)
Model Rule 4.1 addresses the obligation of a lawyer with respect to statements made generally outside the courtroom. It proscribes “the making of a false statement of material fact or law to a third person” as well as the “failure to disclose a material fact necessary to avoid assisting a criminal or fraudulent act, unless disclosure is prohibited by Rule 1.6.”
As with other rules discussed in this article, there is considerable subtlety to what is arguably the admonition we were taught in kindergarten, namely that you should not lie. The use of the modifier “material” implies that the fact must have some importance and not be trivial, but what is the standard by which this might be judged? The comments to the rule do not address this issue; rather, they address the circumstances in which a false statement is made, either because the falsity is known to the lawyer or the lawyer deliberately conceals information that might render a statement false if it were known to others. The issue of what constitutes a material fact has been addressed in a leading decision by the United States Supreme Court in the context of the federal securities laws. In the case of TSC Securities v. Northway, the Court adopted a test for whether an omission in a proxy statement was material by stating that “an omitted fact is material if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote.” The Court went on to say that the test was not whether someone might change his or her opinion with knowledge of the omitted fact, but simply that such knowledge would have assumed actual significance in the individual’s deliberations. Applying this standard to Model Rule 4.1 implies that the false statement or misrepresentation must be judged by a standard of reasonableness from the perspective of the hearer (not the speaker) and be of such significance that the hearer would take the statement into account in forming an opinion about the statement made.
Beyond the question of materiality, Comment 2 to Rule 4.1 puts an additional gloss on whether particular statements might violate the Rule:
This Rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud. Lawyers should be mindful of their obligations under applicable law to avoid criminal and tortious misrepresentation.
The qualifiers on Model Rule 4.1 thus provide the potential for significant cover to a careful individual who may skate close to the edge of falsity or misrepresentation and produce a statement that is seductive, or in the phrase coined by Stephen Colbert in the Colbert Report, one of “truthiness,”making evaluation of conduct violating the rule challenging.
The Bad Actor (Model Rule 8.4)
Model Rule 8.4 defines certain actions by lawyers that are deemed to be misconduct, for which professional sanctions may be imposed. In this context we are concerned with violation of the Rules of Professional Conduct (including assistance or inducement of another person to violate the Rules), conduct involving dishonesty, fraud, deceit or misrepresentation, or conduct that is prejudicial to the administration of justice.
Beyond the issues that define violations of the Model Rules discussed previously, the inclusion of assistance in the violation of a rule as constituting misconduct in its own right expands the universe of individuals who may be subject to discipline. This can assume significance in the case of local counsel who participates in a case in which the lead counsel engages in conduct that is prohibited by Model Rule 3.1, 3.3, or 3.4. Should the local counsel be accountable if he or she does not have actual knowledge of the violation or does the rule require conscious assistance? If the local counsel’s name appears on the briefs is that counsel then responsible for the truth of the contents, or as some have argued, just a “mail drop” with no duty to inquire into the underlying substance of the case? A New York City Bar Formal Opinion in 2015 held that local counsel is subject to the same ethical standards as lead counsel, unless the terms under which the local counsel is engaged are reasonably limited, as permitted in Model Rule 1.2(c). The Opinion goes on to state that merely relying on status as “local counsel” did not infer a limitation on ethical responsibility. This implies that duties of competence, diligence, and reasonable investigation must be observed, even by lawyers who play a minor role in a case.
The Rules in Practice
The next section of this article will present four cases of high profile litigation in which counsel transgressed one or more of the ethical rules discussed above, often with serious consequences for both counsel and their clients.
The Outer Limits of Advocacy and Beyond: The Michigan Election Litigation
The 2020 Presidential Election spawned an unprecedented number of lawsuits filed by the Trump campaign and its allies, alleging various irregularities and fraud that arguably affected the outcome of the vote in several states. While there are a number of examples of egregious lawyering in these cases, and frankly several instances where counsel withdrew due to ethical concerns about the propriety of the claims asserted by the campaign, the most notable of these cases is the litigation challenging the results in Michigan.
On November 25, 2020, several days after it had been announced that Joseph R. Biden had received over 150,000 more votes in Michigan than Donald J. Trump, a group of Michigan voters, including nominees to serve as electors on behalf of the state, filed a lawsuit in the United States District Court for the Eastern District of Michigan against the Governor of Michigan, the Secretary of State, and the Michigan Board of State Canvassers. The plaintiffs were represented by Sidney Powell, Scott Hagerstrom, and Gregory Rohl (who signed the complaint) and the following lawyers listed as “Of Counsel”: Emily P. Newman, Julia Z. Haller, L. Lin Wood, and Howard Kleinhendler.
The lawsuit was unusual, as noted by the court, in that the plaintiffs did not choose to avail themselves of the procedure under Michigan law to challenge elections, but rather alleged three claims under 42 U.S.C. § 1983 for violations of the Elections and Electors Clauses of the Constitution, the Equal Protection Clause of the 14th Amendment, and the Due Process Clause of the 14th Amendment. The basis for these claims was that the defendants failed to administer the 2020 Presidential Election in Michigan in compliance with the Michigan Elections Code and “committed a scheme and artifice to fraudulently and illegally manipulate the vote count to make certain the election of Joe Biden as President of the United States.” Attached to the amended complaint in the case were hundreds of pages of exhibits, including affidavits and reports from purported experts, many of which had been submitted in other Michigan lawsuits challenging the election results. The relief that the plaintiffs sought was decertification of the election results and an order directing the defendants to transmit certified election results declaring that Donald J. Trump was the winner of the election in Michigan. The plaintiffs sought expedited relief due to the deadline for submission of a slate of electors as required by the Elections and Electors Clause of the Constitution and federal law.
In the days that followed, the City of Detroit, the Democratic National Committee, the Michigan Democratic Party, and a Michigan voter, Robert Davis, were granted leave to intervene in the case. Following briefing and argument, the District Court denied the plaintiffs’ request for injunctive relief on December 7, 2020 and emergency appeals to the Sixth Circuit Court of Appeals and the United States Supreme Court ultimately were unsuccessful in obtaining any relief prior to the December 14 date for the casting of electoral votes, thereby making the case moot.
In January 2021 the various defendants made motions to dismiss the case, which were ultimately granted, and motions to sanction the lawyers representing the plaintiffs under Federal Rule of Civil Procedure Rule 11 and 28 U.S.C. § 1927. Following extensive briefing and argument, in August 2021 Judge Linda V. Parker issued a 110-page ruling imposing sanctions on all of the plaintiffs’ counsel.
The opening paragraphs of the court’s Opinion and Order reflected the judge’s profound distaste for the conduct of plaintiffs’ counsel:
This lawsuit represents a historic and profound abuse of the judicial process. It is one thing to take on the charge of vindicating rights associated with an allegedly fraudulent election. It is another to take on the charge of deceiving a federal court and the American people into believing that rights were infringed, without regard to whether any laws or rights were in fact violated. This is what happened here.
Individuals may have a right (within certain bounds) to disseminate allegations of fraud unsupported by law or fact in the public sphere. But attorneys cannot exploit their privilege and access to the judicial process to do the same. And when an attorney has done so, sanctions are in order.
* * *
Specifically, attorneys have an obligation to the judiciary, their profession and the public, (i) to conduct some degree of due diligence before presenting allegations as truth; (ii) to advance only tenable claims; and (iii) to proceed with a lawsuit in good faith and based on a proper purpose. Attorneys also have an obligation to dismiss a lawsuit when it becomes clear that the requested relief is unavailable.
As to a threshold matter, affecting the basic issue of whether the complaint was frivolous, the judge concluded that all of the claims asserted in the lawsuit were barred by mootness, laches, standing, and immunity of the State of Michigan under the Eleventh Amendment and that plaintiffs’ counsel never provided a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law to render their claims ripe or timely, to grant them standing, or to avoid Eleventh Amendment immunity.
The court also addressed two issues that were repeatedly asserted by the lawyers involved in several contexts, including media interviews — namely that, (a) they honestly believed that the factual allegations in their complaint were true and were acting in good faith, and (b) they had no obligation to determine the truthfulness of allegations or the veracity of affidavits in support of their contentions because those things are to be determined through evidentiary hearings in which the truth of the allegations can be tested. The court noted that having an “empty-head” but “pure heart” does not justify lodging patently unsupported factual assertions and that good faith is insufficient to avoid sanctions. Further, the court flatly rejected the argument that counsel had no duty to investigate the truth of the matters put forth in the complaint, ruling that:
What is sanctionable under Rule 11(b)(3) as discussed below is (i) presenting factual assertions lacking evidentiary support, (ii) presenting facts taken from affidavits containing speculation and conjecture because, at no stage during the litigation process, would such “evidence” count as evidentiary support for a factual allegation; (iii) failing to ask questions of affiants who submitted affidavits that were central to the factual allegations that the affidavits supported; (iv) failing to inquire (sufficiently, if at all) into recycled affidavits first used by different attorneys in earlier election challenge lawsuits; and (v) failing to inquire into information readily discernable as false.
While much of the court’s attention was focused on the behavior of Powell, who was lead counsel in the case, it also addressed contentions by peripheral counsel who attempted to avoid sanctions. For example, the court dispensed quickly with the assertion that only the lawyer who signs a pleading is subject to sanction, especially since many pleadings are filed electronically with no signature at the present time, and it is sufficient for a lawyer to be named as counsel in the pleadings to impose responsibility for their content.
L. Lin Wood, one of the more visible figures in the post-election litigation, contended that he never participated in drafting the complaint and did not give permission to have his name included. This contradicted statements under oath by his co-counsel, Powell, as well as statements that Wood himself made in tweets and even in other cases, in addition to his failing to ever note to the court prior to the sanctions hearing that he did not give permission to have his name associated with the pleadings. The court found that he was in fact sufficiently associated with the case to be subject to sanctions.
Emily Newman, a Virginia lawyer who asserted that she only spent “about five hours at home” working on the complaint, and Gregory Rohl, who, as the only Michigan-admitted lawyer in the group signed the complaint, both contended that their highly limited roles should excuse them from liability. As to Newman, the court held that notwithstanding her limited role, she nonetheless agreed to attach her name to the complaint. In Rohl’s case, he asserted that he spent “well over an hour” reviewing the 830 pages of the complaint and supporting materials (presumably to avoid sanctions based on filing it without any review) on the evening it was filed, which the court found to be non-credible as a basis for reasonable investigation of the matters included, and that his agreement to sign the complaint, as the only lawyer eligible to do so, made him responsible for failing to fulfill his obligations as an officer of the court.
In addition to awarding sanctions under Rule 11 and 28 U.S.C. § 1927, Judge Parker also found that the plaintiffs’ lawyers violated the Michigan Rules of Professional Conduct, MRPC 3.1 and 3.3, which “call into question their fitness to practice law” and warranted a referral for investigation to every state bar and federal court in which each attorney is admitted.
The DACA/DAPA Case — “It is Not Nice to Fool a Federal District Judge”
In 2015, some 26 state attorneys general (the “Plaintiff States”), led by Ken Paxton of Texas, sought an injunction against the enforcement of a 2014 Directive (Directive) from the Department of Homeland Security (DHS) concerning the Presidential Executive Order on Deferred Action for Parents of Americans (DAPA) as well as amendments to the Deferred Action for Childhood Arrivals program (DACA), on the basis that the issuance of the Directive violated the Administrative Procedure Act.
The Directive ordered federal law enforcement authorities to accord the lowest priority to legal actions against roughly 11 million individuals who had not come to the United States legally and permitted DACA status to be granted on a modified application for three years, which was a significant change from the two year period afforded to prior applicants. The Plaintiff States argued that the DHS policy would impose substantial costs on them in providing services to beneficiaries of the DACA and DAPA programs. Judge Andrew Hanen issued an injunction against implementation of the Directive, and the decision was affirmed by an equally divided Supreme Court.
During the pendency of the appeals of his order, Judge Hanen determined that the Justice Department lawyers representing the United States had engaged in repeated misrepresentations to both the Plaintiff States and to the court concerning the implementation of the Directive during the briefing and argument in the injunction proceedings. The Justice Department lawyers had represented to the court that no action would be taken with respect to modified DACA applications under the Directive prior to February 18, 2015, when in fact DHS had processed over 100,000 modified DACA applications at that time. In addition to misrepresentations during the time leading up to the issuance of the injunction, the court also found that DHS had continued to process modified DACA applications for a full two weeks following the issuance of the injunction, in plain violation of his order. The Justice Department lawyers argued that DHS had only engaged in preparation for the acceptance of modified applications and that they did not know the relevant facts concerning the actual number of modified DACA applications that had been processed.
Judge Hanen summarily dismissed the federal government’s explanations for the misrepresentations and held that counsel had violated Texas Disciplinary Rules of Conduct 3.03 (candor toward a tribunal), 4.01 (truthfulness in statements to others), and 8.04 (misconduct — specifically conduct involving dishonesty, fraud, deceit, or misrepresentation). With respect to the issue of candor, and specifically as to the issue of the number of DACA applications processed, the court noted with manifest contempt that there is “no de minimis rule that applies to a lawyer’s ethical obligation to tell the truth.”
HCR Manor Care — The Case of the Dissembling Expert
In April 2015, the Department of Justice issued a press release announcing its intervention in three cases filed under the provisions of the False Claims Act, alleging that HCR ManorCare had knowingly and routinely submitted false claims to Medicare and TRICARE for medically unnecessary rehabilitation therapy services.
The federal government relied heavily on an expert, Dr. Rebecca Clearwater, a contractor leading program integrity reviews for the Centers for Medicare & Medicaid Services. Dr. Clearwater involved two nurse therapists in her review of HCR ManorCare records to support her findings. Following her expert deposition, the defendants filed a Daubert motion to exclude her testimony on the basis that she was unqualified to express the opinions in her testimony and that her supporting report contained multiple errors and omissions of material facts. Five days before the Daubert hearing, the government lawyers produced 5,000 pages of handwritten notes related to Dr. Clearwater and her nurse reviewers’ assessments of the patient therapy protocols used by HCR ManorCare. Dr. Clearwater had, in testimony, denied the existence of any such notes, and later claimed to have forgotten about the existence of the notes, or misunderstood what the request for production of her “notes” meant. The notes disclosed, among other things, disagreements between her and the nurse reviewers she employed concerning the assessment of, and the medical necessity for, the therapies provided.
On October 27, 2017, federal Magistrate Judge Theresa Carroll Buchanan granted the motion to exclude Dr. Clearwater’s testimony and in a sanctions hearing advised the government that she was “appalled,” “embarrassed,” and “ashamed” that the government had relied on Dr. Clearwater’s opinions. She ruled that “[Dr. Clearwater] must not be allowed to testify due to her utter lack of credibility.” The judge sanctioned the federal government, and shortly thereafter, the Justice Department lawyers joined in a motion dismissing the cases with prejudice.
The conduct of the Justice Department lawyers implicates several potential ethics and professionalism standards — ranging from whether they were competent in advancing the expert testimony of Dr. Clearwater, in not assuring that her deposition testimony was accurate, and in not being truthful to the court and to the defendants in the course of discovery and document production. The delayed production of voluminous quantities of notes as well as the manifest errors in the report offered by Dr. Clearwater certainly suggested to the Magistrate Judge that the conduct of government counsel was not merely inadvertently incompetent. In this respect, the conclusions of the Magistrate Judge parallel the findings of Judge Hanen in the DACA/DAPA case cited above.
The Mary Trump Litigation — If at First You Don’t Succeed?
Former President Donald J. Trump is no stranger to litigation. In a 2019 book, James Zirin, a former federal prosecutor, wrote: “Trump saw litigation as being only about winning. . . . He sued at the drop of a hat. He sued for sport; he sued to achieve control; and he sued to make a point. He sued as a means of destroying or silencing those who crossed him. He became a plaintiff in chief.” Not surprisingly, even members of his extended family were not exempt from his use of the courtroom to advance his interests.
In 2020, Trump’s brother Robert commenced a lawsuit against his niece Mary Trump and the publisher Simon & Schuster to enjoin publication of her book entitled, Too Much and Never Enough, How My Family Created the World’s Most Dangerous Man. While certainly Robert Trump and other members of the family were cast in a negative light by the book, its focus, and arguably the prime mover behind the lawsuit, was the then President. The basis for the relief being sought was an Agreement and Stipulation (Stipulation) entered into in 2001 by a number of members of the Trump family, including Robert Trump and Mary Trump, which resolved litigation concerning the will of Fred C. Trump, the patriarch of the clan.
Robert Trump wanted the court to enforce the provisions of the Stipulation in such a way as to preclude Mary Trump, and by proxy Simon & Shuster, from disclosing any information about the Trump family and its relationships that had emerged during the probate litigation. The judge essentially determined that each argument asserted by Robert Trump to support this claim was threadbare and unworthy of the remedy he sought. Specifically, the judge found that: (a) the plain language of the Stipulation was too imprecise to be interpreted strictly as advocated by Robert Trump, (b) the Stipulation was not enforceable as a confidentiality agreement, (c) the circumstances in 2020 were not contemplated by the Stipulation, even if it were read as a confidentiality agreement, (d) there was no consideration for the confidentiality provisions in the Stipulation, and thus no basis to enforce the clause in any event, (e) the court had no power to enjoin Simon & Schuster as an agent of Mary Trump since it simply was not her agent as a matter of law, (f) Mary Trump’s First Amendment rights of free speech could not be contracted away by the Stipulation, and finally, (g) since 75,000 copies of the book were already in circulation and there had been an enormous amount of publicity of its contents, an injunction would serve no real purpose. In sum, the decision was as resounding a defeat as possible for Robert Trump, accentuated by the judge churlishly remarking near the end of his opinion: “in the vernacular of First year law students, ‘Con. Law trumps Contracts.’”
While an argument could be made that bringing this lawsuit verged dangerously close to a violation of Model Rule 3.1 as frivolous, it probably passes the test of being more than meritless in that there were arguments founded on principles of the law, even though the court ultimately found them lacking and did so in harsh terms.
The problem is that this decision plainly had no particular effect on the views of the former President, who elected to sue Mary Trump in September 2021, along with the New York Times and several of its reporters, for tortious conduct in disclosing tax records that were the basis for a series of articles alleging substantial tax irregularities, which was published in the New York Times. This new suit was based on the theory that Mary Trump, in disclosing materials obtained in discovery during the litigation over her grandfather’s will, breached the terms of the very Stipulation that was the subject matter of the Robert Trump lawsuit the year before and that the New York Times reporters tortiously abetted her actions and caused Mary Trump to breach the Stipulation. The case is not based on a defamation theory, nor does the complaint assert that any of the information disclosed or published was untrue. The basis for alleged damages suffered by Donald Trump appears to be that Mary Trump and the New York Times were unjustly enriched, presumably through the sale of newspapers and attendant publicity, as a result of the disclosure of materials that Mary Trump lawfully possessed.
Donald Trump’s lawyers decided to file this suit before the same court (albeit not the same judge) as the previous unsuccessful suit. Given the findings in the Robert Trump case as to the nature and effect of the Stipulation, it is hard to understand how counsel (different counsel from the first case) could assert that somehow the Stipulation, which was determined not to be an enforceable confidentiality agreement binding on Mary Trump, gained that status for purposes of the present lawsuit and that therefore the lawsuit is not frivolous. Of course, the complaint fails to note the result of the prior litigation or argue with the findings of that court, which invites scrutiny of counsel under Model Rule 3.3 as well as Model Rule 3.1. At the time of this writing (January 2022), the defendants have answered the complaint, but there have been no rulings in this case. Theodore Boutros, Jr., who has served as counsel for Mary Trump in both the Robert Trump case and the present case, tweeted this comment following the filing of the suit: “[T]his is the latest in a long line of frivolous lawsuits by Donald Trump that target truthful speech and important journalism on issues of public concern. It is doomed to failure . . . like the rest of his baseless efforts to chill freedom of speech and of the press.”
What Should the Courts Do About It?
In response to litigation conduct that transgresses ethical standards, judges in two of the cases cited in this article have gone beyond traditional remedies, such as sanctioning the lawyers and clients, to impose specific duties on counsel to redress ethical lapses and even ordered referrals to disciplinary bodies with jurisdiction over the offending counsel.
In the Michigan election litigation case, Judge Parker entered the following as part of her orders:
IT IS FURTHER ORDERED that Plaintiffs’ attorneys shall each complete at least twelve (12) hours of continuing legal education in the subjects of pleading standards (at least six hours total) and election law (at least six hours total) within six months of this decision. Any courses must be offered by a non-partisan organization and must be paid for at counsel’s expense. Within six months of this decision, each attorney representing Plaintiffs shall file an affidavit in this case describing the content and length of the courses attended to satisfy this requirement.
IT IS FURTHER ORDERED that the Clerk of Court shall send a copy of this decision to the Michigan Attorney Grievance Commission and the appropriate disciplinary authority for the jurisdiction(s) where each attorney is admitted, referring the matter for investigation and possible suspension or disbarment: (i) Sidney Powell – Texas; (ii) L. Lin Wood – Georgia; (iii) Emily Newman – Virginia; (iv) Julia Z. Haller – the District of Columbia, Maryland, New York and New Jersey; (v) Brandon Johnson – the District of Columbia, New York and Nevada; (vi) Scott Hagerstrom – Michigan; (vii) Howard Kleinhendler – New York and New Jersey; (vii) Gregory Rohl – Michigan; and Stefanie Lynn Juntilla – Michigan.
In fashioning a remedy for the federal government’s misconduct in the DACA/DAPA case, Judge Hanen faced a significant challenge. He was within his authority to strike the federal government’s pleadings in the case, but declined to exercise that power given that the case was before the Supreme Court and “[t]he national importance of the outcome of this litigation outweighs the benefits to be gained by implementing the ultimate sanction. Striking the government’s pleadings would not only be unfair to the litigants, but also unfair, and perhaps disrespectful, to the Supreme Court, as it would deprive that Court of the ability to thrash out the legal issues in this case.” Similarly, the judge concluded that another common remedy for misconduct, imposing monetary sanctions on the federal government, would effectively penalize the Plaintiff States in the case since their citizens would bear a proportion of the sanction amount paid from the federal Treasury, without imposing any penalty on the Justice Department, which is “responsible for this mess.”
In view of these considerations, Judge Hanen fashioned an unprecedented series of remedies: (1) any attorney employed at the Justice Department in Washington, D.C. who appears, or seeks to appear, in any court (state or federal) in any of the Plaintiff States is required annually to attend a legal ethics course consisting of at least three hours of ethics training, taught by an independent expert lecturer, (2) the Attorney General was to appoint a person within the Department of Justice to ensure compliance with this order and file annual reports with the court for a period of five years, commencing December 31, 2016, (3) the Attorney General was to report to the court within 60 days with a comprehensive plan for preventing the type of unethical conduct in this case and report what steps she was taking to ensure that if Justice Department lawyers make an internal decision about what is “material” or “relevant” in a lawsuit, that those lawyers are truthful about the nature of those decisions to both the court and the opposing litigants, and (4) the Attorney General was ordered to inform the court of what steps she was taking to ensure that the Office of Professional Responsibility in the Justice Department effectively polices the conduct of Justice Department lawyers and disciplines those whose action fall below the standards that the American people rightfully expect from their Department of Justice. In addition, the court revoked the pro hac vice status of the out-of-state Justice Department lawyers who appeared in the case.
There is a long tradition of affording counsel, particularly in litigation of great importance, considerable leeway in advocacy for their clients. Indeed, as noted through the Model Rules, this is expected as part of a lawyer’s duties. Nonetheless, there are lines that may not be crossed, nor justified on the basis that it was necessary to violate the rules to vindicate an important (at least in the mind of the lawyer) cause. Courts are showing increased sensitivity to these concerns and to introduce into their decisions specific sanctions that implicate professional discipline and potentially affect the licensure of counsel whose conduct violates rules that are intended to protect the integrity of the legal system.