In my last Commentary which addressed, “The Necessary Independence and Interdependence of the Judiciary and the Media,” I explained the necessary interaction between an independent judiciary and a free media in insuring that judges be able to distinguish between fact and fiction in a courtroom, e.g., in today’s world between conspiracy theories and evidentiary-based findings of fact as a basis for claims of a “stolen election” and lawyerly justifications for participation in an attempted insurrection.
Part of the way judges ensure that they can consistently execute that core judicial function is to insist, and if necessary, enforce the ethical and legal obligation of every lawyer to comply with the applicable “Attorneys’ Rules of Professional Conduct.” Every state, as well as the Federal Courts, have them. They are very similar in many states with some notable exceptions because they are derived in large part from The American Bar Association Model Rules.
The “Maryland Attorneys’ Rules of Professional Conduct” are typical and will be used in this Commentary as a template to illustrate the opinions that I will offer in this space. The Preamble to these Rules immediately recognizes the reality we are confronting and the necessity of lawyers assisting the judiciary in distinguishing fact and fiction, evidence, and argument. It says:
An attorney, as a member of the legal profession is a representative
of clients, an officer of the legal system, and a public citizen having
special responsibility for the quality of justice.
(emphasis in bold italics added)
The Preamble also recognizes that the attorney’s obligations are multi-dimensional and
that those obligations are prescribed in The Rules and the law. The Preamble also notes that “However, an attorney is also guided by personal conscience and the approbation of professional peers.”
These specific Rules are being enforced around the country in court proceedings being presided over and, in some cases, initiated by a cross-section of federal and state court judges These judges, who were appointed by both Republican and Democratic Presidents, including former President Trump himself, are noticing behavior by counsel for former President Trump and some surrogate entities and individuals serving as Plaintiffs in cases related to the 2020 election which in their judicial minds do not comply with the Rules of Professional Conduct in their jurisdiction. These Rules are set forth in The Maryland Rules of Professional Conduct in Rule 19-303.1, Rule 19-303.3, and Rule 19-304.1. Those Rules read in pertinent part as follows:
Rule 19-303.1 – Meritorious Claims and Contentions
An attorney shall not bring or defend a proceeding or assist or controvert
an issue unless there is a basis for doing so that is not frivolous……
Rule 19-303.3 – Candor Toward Tribunal
(a) An attorney shall not knowingly make a false statement of fact of
law to a Tribunal or fail to correct a false statement of material fact
or law made to the Tribunal by the attorney…….
Rule 19-304.1 – Truthfulness In Statements to Others
In the course of representing a client, an attorney shall not knowingly
make a false statement of material fact to a third person……..
NOTE: “Third Persons” include the general public who listen and watch cable
news, the internet, and podcasts.
It is the alleged failure of counsel for the surrogates of former President Trump or his sympathizers to comply with these Rules of Professional Conduct that prompted federal and state judges, and in some states, the Bar Associations of those states, to intervene and seek regulatory and/or professional disciplinary sanctions against some of these attorneys and/or to confront them in open court and on the record with their conduct.
Those actions include, but are certainly not limited to, the suspension of Rudolph W. Guiliani, Esquire, from the practice of law in the state of New York and the District of Columbia. There is also pending action by judges in Colorado and Michigan to require counsel in civil cases in those states to pay the attorneys fees of all parties who were sued in the current opinion of these courts without any legal or evidentiary basis for doing so. Apparently, the courts in those cases, specifically requested counsel to articulate or produce the evidence which supported their claims. These inquiries were responded to in effect by statements to the effect of “We’re working on it.”
The seriousness of these violations of not just norms but Rules, illustrates the importance of my previous Commentary regarding the essential relationship between an Independent Judiciary and a free media. The gravity of these violations was articulated by The Supreme Court of the state of New York, Appellate Division in The Giuliani Case as follows:
The risk that respondent will continue to engage in future misconduct
while this disciplinary proceeding is pending, is further borne out by
his past, persistent and pervasive demonstration of these false
statements in the media. This is not a situation where the uncontroverted
misconduct consisted of only a few isolated incidents. Rather, each of
the false statements identified and analyzed herein were made
multiple times on multiple platforms, reaching countless members
of the public. They continued after this motion was brought, and
despite respondent facing imminent suspension from the practice
The seriousness of respondent’s uncontroverted misconduct cannot
be overstated. This country is being torn apart by continued attacks
on the legitimacy of the 2020 election and of our current president,
Joseph R. Biden. The hallmark of our democracy is predicated on
free and fair elections. False statements intended to foment a loss
of confidence in our elections and resulting loss of confidence in
government generally damage the proper function of a free society.
When those false statements are made by an attorney, it also erodes
the public’s confidence in the integrity of attorneys admitted to
our bar and damages the profession’s role as a crucial source of
reliable information (Matter of Nearing, 16 AD2d at 516). It
tarnishes the reputation of the entire legal profession and its
mandate to act as a trusted and essential part of the machinery
of justice (Ohralik v Ohio State Bar Assn, 436 US at 447). Where,
as here, the false statements are being made by respondent,
acting with the authority of being an attorney, and using his
large megaphone, the harm is magnified. One only has to look
at the ongoing present public discord over the 2020 election, which
erupted into violence, insurrection and death on January 6, 2021, at
the U.S. Capitol, to understand the extent of the damage that can be
done when the public is misled by false information about the election.
Claims of voting machine company conspiracies, voter fraud, and destruction of ballots were brought in 61 courts, all of whom dismissed every single one of these claims. Interestingly, some of the lawyers for the surrogate Plaintiffs, including Rudolph Giuliani, in a Pennsylvania Federal Court in front of a judge that Donald Trump appointed, shied away from alleging voter fraud – probably out of concern even then of violating Pennsylvania’s Rule against failing to be candid with the Court. Notwithstanding that reticence by a normally unrestrained Rudy Giuliani, the Trump appointed Republican Judge commented to counsel, words to the effect, “You have no evidence.”
This writer practiced law for almost eleven years before going on the Bench. I understand that pleasing your client can be difficult, particularly if he or she is not reality based. That includes the former President of The United States. That said, sacrificing your professional reputation and your integrity, not to mention your duty to your country, to placate him and thereby stay relevant, should not be a close call. If it is – there should be consequences! In this case there already have been.