March 29, 2021 Articles

Post-Election Litigation and Rule 3.6 Restrictions on Trial Publicity

As courts dismissed complaints challenging the outcome of the 2020 presidential election, a myriad of private individuals and bar associations filed disciplinary complaints against the lawyers crying fraud in public but not in court.

By Daniel Harrington
Disciplinary complaints during election season and the ensuing media coverage offer a crash course in ABA Model Rule 3.6 regarding trial publicity.

Disciplinary complaints during election season and the ensuing media coverage offer a crash course in ABA Model Rule 3.6 regarding trial publicity.

Pexels | Element5 Digital

The surge of litigation challenging the outcome of the 2020 presidential election has finally come to an end without changing the electoral outcome in any state. It did, however, engender a countersurge of disciplinary grievances filed by elected officials, state and local bar associations, present and former bar leaders, and other public figures, as well as, no doubt, many private citizens, against lawyers who represented the Trump campaign or who otherwise sought to overturn the election.

One such grievance, not directly related to the merits of a specific lawsuit, was filed with the Office of Disciplinary Counsel of the District of Columbia Court of Appeals by Representatives Kathleen M. Rice (D-N.Y.) and Ted W. Lieu (D-Cal.) against Trump campaign lawyer Joseph E. diGenova. Letter from Kathleen M. Rice and Ted W. Lieu, Reps., to D.C. Ct. of Appeals Off. of Disciplinary Couns. (Dec. 2, 2020). Representatives Rice and Lieu charged diGenova with a number of violations of the D.C. Bar Rules of Professional Conduct (RPCs) for highly publicized statements diGenova made on a call-in radio show to the effect that Christopher Krebs, a former Trump administration official, “should be drawn and quartered” and “[t]aken out at dawn and shot” for assuring the American public that the 2020 election was secure. Id.

Among the RPC violations asserted by Representatives Rice and Lieu was a violation of D.C. Rule 3.6, relating to “Trial Publicity.” This article addresses whether the charge is likely to stick. (This article does not address the many other RPCs potentially applicable to the Trump campaign lawyers’ efforts to overturn the popular vote in certain swing states, including other RPCs potentially applicable in particular to the conduct of diGenova, who reportedly also faces civil liability via suit brought by Krebs and lost his membership in the Gridiron Club.)

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