Novel legal theories and approaches are necessary for the growth and vitality of the law; however, they are not boundless. While lying in politics has come to be expected, lying in the law could be career-defining or career-ending. Nine attorneys responsible for filing Michigan lawsuits challenging the 2020 presidential election realized that truth the hard way after being sanctioned by the court and referred to potential professional discipline. Those lawsuits launched a national debate about whether those cases were so frivolous and baseless that sanctions were warranted or whether civil litigators should be more mindful of unique or novel legal strategies when pursuing litigation.
A Historic and Profound Abuse of the Judicial Process
As was widely reported and debated, the more than 60 lawsuits challenging every aspect of the 2020 presidential election put our legal system squarely in the national political spotlight. While the intersectionality between politics and the law isn’t novel, and the attempted use of courts to impact elections is relatively commonplace, frivolous and meritless claims may lead to court sanctions and put the professional careers of the attorneys involved in jeopardy. In examining potential sanctions or discipline against the attorneys responsible for filing the Michigan election suit, Rule 11 of the Federal Rules of Civil Procedure and Rule 3.1 of the Rules of Professional Conduct (RPC) both of which forbid the bringing of claims without factual or legal support, must be considered. Judge Linda V. Parker of the Eastern District of Michigan found what she referred to as “a historic and profound abuse of the judicial process.” After so finding, Judge Parker directed the Clerk to send the decision to the disciplinary authorities in the nine different states in which the lawyers are licensed.
With the Michigan case in mind, another national debate ensued addressing the following question: Should attorneys face a disciplinary process for bringing frivolous lawsuits, or is this a problem for the trial courts?
Different Systems with Different Goals
According to Lonnie Brown, A. Gus Cleveland Distinguished Chair of Legal Ethics and Professionalism at the University of Georgia School of Law, Rule 11’s function is more akin to regulation than discipline. The federal court’s institutional interest in imposing sanctions, according to Brown, is far narrower than the State’s interest concerning attorney discipline. The civil procedure sanction system and the attorney discipline system are different systems with different goals.
Rule 11 is designed to protect the institution of the courts and the court’s time and functioning through deterrence of specific conduct that wastes court resources. RPC Rule 3.1 as a disciplinary rule is designed to protect the public, the legal system, and the profession. Ethics attorney Ellen Brotman, founder and owner of Brotman Law, suggests that while Rule 11 has a certain process, a finding by a trial court, it does not have a full due process necessary to allow for fair disciplinary actions against an attorney. When the legislature considered Rule 11, according to Rebecca Roiphe, a former state prosecutor, it balanced the interest, integrity, and functioning of the judicial system to encourage certain cases and not discourage “hard” cases. Courts, according to Roiphe, are in a better position to sanction lawyers under these circumstances financially. For the most part, disciplinary proceedings are not brought against lawyers for Rule 3.1 violations because the courts do a sufficient job. The above-mentioned ethics attorneys were unanimous in the belief that, by in large, the likelihood of being charged with a Rule 3.1 violation, even if a Rule 11 sanction is warranted, is minimal.
Attorneys should feel free to pursue difficult cases, novel legal approaches and theories, and advance the law. Even if that approach strays into frivolity as assessed by the trial court, Rule 11 sanctions could be imposed. Still, an attorney, in all likelihood, would be able to keep practicing . . . perhaps, however, with a slightly smaller bank account.
How should bar counsel respond to allegations that lawyers filed frivolous legal challenges to the results of the 2020 presidential election? How should bar counsel react to complaints that lawyers lied to the public about the election results? When does lawyers’ misbehavior merit a disciplinary response, and when is it better addressed informally, such as by professional ostracism or other legal processes? Four legal ethics experts with a range of experience and controversial perspectives debate these questions in the ABA on-demand CLE program Legal Ethics in the National Spotlight.