The following contains purely informational, educational or technical material. The views expressed herein represent the opinions of the author and have not been approved by the ABA House of Delegates or the Board of Governors and, accordingly, should not be construed as representing the position of the association or any of its entities.
“Make it stop.” Wherever two or more lawyers gather, it is a topic of conversation: Why did the legal system tolerate the continuous filing of lawsuits challenging the 2020 presidential election when the voter counts had been confirmed in every state? Constitutionally, the Electoral College and Congress both have additional roles to play in determining the outcome: Electors voted on Dec. 14, and the results were then transmitted to Congress for a final vote on Jan. 6, to be followed by the final-final action, an inauguration on Jan. 20. “There must be a rule,” the complainants continue. In fact, there are several, both procedural and ethical.
First, the procedural. On Dec. 13, Politico magazine published an online article by Kimberly Wehle, professor of law at the University School of Law, about Rule 11 of the Federal Rules of Civil Procedure (Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions). In a very insightful discussion, Wehle notes that Rule 11 is meant to be a deterrent, which is an important point. Rule 11(c)(2) states that “a sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated.” Sanctions are limited to directives of a non-monetary nature, an order to pay a fine to the court, or an order directing the payment of the movant’s related attorney fees and costs. Furthermore, under Rule 11(c)(2)(B), if the court itself initiates the sanction, it must hold an order to show cause to prove the sanction is warranted. Where courts dismiss unmeritorious cases quickly, Rule 11 provides virtually no incentive to plaintiffs to stop, as the financial risk to them is very low. If the filings bring other benefits such as political advantages, a serial plaintiff may consider it more cost effective than other strategies to achieve the desired results. And Rule 11 applies only to federal courts; the Rules of Procedure for local courts may be more demanding (or less so). But on the whole, the rules presume that the plaintiff expects to receive an advantageous result from court action. If that is not the plaintiff’s purpose, the filings will not stop until the plaintiff’s other goal, whatever it is, is met or conclusively defeated.
While many lawyers find irritating the ineffectiveness of Rule 11 and its counterparts in stopping the flow of cases, their outrage pales in comparison to that of other lawyers focused on alleged violations of the Model Rules of Professional Conduct. Following are a few example.
On Nov. 10, the group, Lawyers Defending American Democracy (LDAD) reported that more than 1,600 individuals had signed an open letter “Seeking Accountability for False Claims Of Fraudulent Election.” The letter cited the ABA Model Rules of Professional Conduct and specifically Rule 3.3 (Candor Toward the Tribunal) as a basis for accountability.
On Dec. 1, Washington Post.com published an opinion piece, “25 former D.C. Bar presidents and a former CEO of the District of Columbia Bar Association: “Lawyers should not be complicit in Trump’s attack on democracy,” which called for lawyers to be held accountable for court filings not based in law or fact, Rule 3.1 (Meritorious Claims and Contentions) and Rule 8.4(c) and (d) (Misconduct: engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; and engaging in conduct that is prejudicial to the administration of justice).
On Dec. 3, the LDAD issued an open letter, “Call for Bar Condemnation and Investigation of President Trump’s Campaign Lawyers for Subverting American Democracy.” LDAD reported 3,500-plus signers to the letter, cited Rule 4.1(a) (Truthfulness in Statements to Others: not knowingly making false statements of material fact or law to a third person), Rule 8.4(c), and Rule 3.1.
On Dec. 7, the LDAD issued a press release reporting that “Over 1500 Attorneys Press Bar Authorities to Condemn & Investigate Trump’s Campaign Lawyers” and signed an open letter to that effect. The letter cites the Model Rules and incorporates language from Rule 3.1 and Rule 3.3 (Candor Toward the Tribunal.)
On Dec. 14, the LDAD’s steering committee members issued a statement “condemning the action taken by 18 state Attorneys General, and joined by 126 Republican members of Congress, asking the Supreme Court to overturn election results in four battleground states, citing Rule 3.1
Unmentioned by these sources but not forgotten is Rule 1.1 (Competence), which is required of all lawyers. If the conduct about which the above critics complain is not determined to be contrary to other Rules of Professional Conduct, it may still be considered as a competence issue before a disciplinary tribunal.
Legal ethics and lawyer discipline are now a highly visible means of making lawyers accountable, and deterring future misconduct of the same kind, in a way the Rule 11 and its counterparts cannot. The ABA has a Legal Fact Check that provides guidance on frivolous lawsuits. The article offers significant background in general on frivolous suits, but also addresses the question of how lawyer discipline works and why it may take longer to yield results than other legal responses. As the article states, whether lawyer conduct warrants discipline would be determined by the Rules of Professional Conduct and the disciplinary procedures adopted by the jurisdiction. An additional cause of some frustration for those who want to know what disciplinary agencies, including mandatory bars, are doing is confidentiality. Many disciplinary systems have rules that maintain confidentiality during the investigative stage of a disciplinary complaint. Many unified bar associations and other disciplinary agencies throughout the country are undoubtedly in triage mode, well on their way to disciplinary proceedings.
So why is nothing happening in lawyer regulation? Actually, maybe something is.
Teresa J. Schmid is the director of the American Bar Association Center for Professional Responsibility. She is a past executive director for the Oregon State Bar and executive director for the State Bar of Arizona. She is also a past chair of the Los Angeles County Bar Association’s Professional Responsibility and Ethics Committee and a past member of the State Bar of California’s Standing Committee on Professional Responsibility and Conduct.
The Center for Professional Responsibility provides national leadership in developing and interpreting standards and scholarly resources in legal and judicial ethics, professional regulation, professionalism and client protection.