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Trump attorneys risk disciplinary action over wave of election suits

The Hill logo The Hill 12/24/2020 John Kruzel
a man wearing glasses talking on a cell phone: Trump attorneys risk disciplinary action over wave of election suits © Getty Images Trump attorneys risk disciplinary action over wave of election suits

The attorneys behind President Trump's failing effort to overturn the election are facing mounting ethics complaints for advancing what critics say is a frivolous legal campaign designed to delegitimize President-elect Joe Biden's win and bolster Trump's post-election fundraising.

Trump lawyer Rudy Giuliani, as well as allies Sidney Powell and Lin Wood, have been accused of pressing lawsuits larded up with unreliable assertions, flimsy claims and even outright lies, in violation of their obligations as officers of the court.

As a result, judges and bar associations may soon face the task of sorting out whether these legal efforts amount to hard-fought advocacy, or if they've crossed a line.

According to experts in legal ethics, disciplinary sanctions could include fines, private or public censure, law-license suspension or even disbarment.

The possibility of Trump-allied attorneys facing disciplinary action was in many ways sparked by their woeful win-loss record in court. By some estimates, the campaign and its allies have prevailed in only a minor case affecting a sliver of Pennsylvania mail ballots, while at the same time losing or withdrawing in more than 50 rounds in state and federal court.

"Essentially, the rules require lawyers to screen out junk from the court in order to protect judicial resources, which are limited. Lawyers have a gatekeeper function," said Stephen Gillers, a law professor at New York University. "The abysmal failure rate of the campaign's claims, and the fact that claims were filed even after many losses, reveal almost certain violations of these rules."

On Tuesday, Michigan Attorney General Dana Nessel (D) became the latest public official to press for the punishment of pro-Trump attorneys. In a court filing, Nessel asked Michigan-based U.S. District Judge Linda Parker to consider sanctions against Powell, Wood and their co-counsel for what Nessel called a "baseless lawsuit."

The district judge, an Obama appointee, earlier this month dismissed the far-fetched bid, which sought to award Michigan's electoral votes to Trump despite his losing to Biden by 154,000 votes. Since then, however, the Trump-allied legal team has only doubled down, petitioning the Supreme Court last week for an appeal and asking the justices to fast-track consideration of the case.

"These are flagrant lies that Ms. Powell is submitting to, of all places, the United States Supreme Court," Nessel told CNN in an interview Tuesday. "It's disturbing and I think that it undermines our entire profession, and she has to be held accountable."

Separately, a Delaware judge presiding over a case unrelated to the election warned Wood that conduct he's displayed while carrying out pro-Trump litigation could land him in hot water. Wood is representing Carter Page, a former adviser to Trump's 2016 campaign, who is suing a media company in Delaware state court for defamation.

Delaware Superior Court Judge Craig Karsnitz took Wood to task on Tuesday for alleged unprofessional behavior in lawsuits aimed at overturning election results in Wisconsin and Georgia. The judge identified various alleged ethical breaches, including Wood having filed a suit in a plaintiff's name without permission, and submitting a false affidavit.

"It appears to the Court that, since the granting of Mr. Wood's motion, he has engaged in conduct in other jurisdictions, which, had it occurred in Delaware, would violate the Delaware Lawyers' Rules of Professional Conduct," Karsnitz wrote in an order to show cause, which was first reported by the outlet Law and Crime.

When reached for comment by The Hill, Wood said he has "not seen a request for sanctions so I am unable to comment."

Powell did not respond to a request for comment; neither Powell nor Wood are officially part of the Trump legal team, according to campaign officials.

Giuliani, Trump's lead attorney, has also been subject to ethics complaints for his role in trying to overturn Biden's win.

In November, Rep. Bill Pascrell (D-N.J.) filed complaints against Giuliani and more than 20 other lawyers behind lawsuits seeking to reverse Trump's lost reelection bid, asking for investigators to consider revoking the former New York mayor's license.

"I've just filed legal complaints with the AZ, MI, NV, NY, and PA bars against Rudy Giuliani and 22 other lawyers seeking their disbarments for filing frivolous lawsuits and trying to help Trump steal the election and dismantle democracy," Pascrell wrote in a Nov. 20 tweet.

When reached for a comment, Giuliani said he was unaware of the complaint lodged against him by Pascrell.

"Haven't heard any such thing???" Giuliani said in an emailed response to The Hill. "Who is he?"

Earlier this month, more than 1,500 attorneys signed an open letter condemning the Trump legal team's efforts, identifying Giuliani, Powell and several other Trump allies by name.

"President Trump's barrage of litigation is a pretext for a campaign to undermine public confidence in the outcome of the 2020 election, which inevitably will subvert constitutional democracy," read the open letter compiled by the group Lawyers Defending American Democracy. "Sadly, the President's primary agents and enablers in this effort are lawyers, obligated by their oath and ethical rules to uphold the rule of law."

Steven Lubet, a law professor at Northwestern University, said he's generally opposed to what he called the "weaponization" of legal ethics. In 2017 he penned an essay for Slate pushing back against disciplinary charges filed by law professors against former Trump adviser and White House counselor Kellyanne Conway.

But Lubet said he views the election-related lawsuits differently to the extent that it can be shown that the lawyers submitted untrue claims in court filings.

"I would not make a similar argument in defense of an attorney's false claims in federal court litigation," he said.

Legal ethics rules generally prohibit lawyers from filing frivolous claims, which are those lacking in legal or factual support. Yet even if a legal argument is not considered frivolous, experts said, they can still violate ethics rules if made for an invalid reason.

"The federal rule forbids lawyers from invoking the judicial power for an 'improper purpose,'" said Gillers of New York University Law School, citing efforts to raise funds or cast doubt on an election as examples of unethical purposes.

As the languishing Trump legal campaign has dragged on, election law experts for weeks have said the litigation morphed from an attempt to flip the election to a campaign for fueling Trump's fundraising effort - which has raked in more than $200 million since Nov. 3. To some scholars, it became clear shortly after Election Day that the kinds of claims and evidence needed to persuade the courts were clearly absent.

Still, it's relatively rare for public sanctions to be applied. According to Deborah Rhode, a law professor at Stanford Law School, fewer than 10 percent of all disciplinary complaints end with public sanctions.

But Rhode said it's possible that courts or disciplinary bodies could view Trump's post-election litigation in an especially harsh light given the weighty concerns at hand.

"The conduct of these lawyers was so egregious and the stakes were so high, given the way that suits fed doubts about the legitimacy of the election and the reputation of lawyers, that perhaps some disciplinary authorities will be moved to act," she said.

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