The Ethics of Trump’s Lawyers?

A hierarchy of lawyers directed and coordinated this bogus barrage. Their ethical liabilities depend in part on their places in this hierarchy. All are obviously subject to ethical liability based on their own conduct. But an important point we focus on and emphasize in this column is that lawyers on the Trump team who supervised other lawyers incurred additional ethical responsibilities they appear not to have fulfilled.

We do not examine here some obviously relevant Model Rules, such as Model Rule 3.1, the ethical analog to Rule 11 prohibiting the filing of meritless lawsuits; Rules 3.3(a)(1) and 4.1(a) prohibiting false statements; and Rule 8.4(c) banning conduct “involving dishonesty, fraud, deceit, or misrepresentation.” These have been addressed in editorials, news articles, and ethics complaints already filed. Instead, we take a close look at some Model Rules that may not so readily come to mind but are highly relevant. We analyze potential ethical liabilities under these rules for supervising lawyers in the Trump legal team. We also address whether withdrawal after a bogus suit has been filed provides a defense to ethical liability. Finally, we use the purposes of criminal punishment by way of analogy to consider whether and what types of professional discipline are appropriate.

Lawyer Roles

Many lawyers prepared, filed, vouched and advocated for, and publicized lawsuits now widely accepted as having been baseless. Some revealed their participation and contributions, placing their names on complaints, appearing in court, and publicly advocating for the suits. Other lawyers whose names have not been revealed surely participated and contributed as well. State bar authorities should investigate the roles played by both lawyers who were public about and those who were not public about their involvement in the baseless lawsuits.

Criminal law has a number of tools to deal with those who combine efforts to commit crimes. The laws of complicity, conspiracy, and solicitation are examples. Legal ethics rules have analogous provisions dealing with unethical conduct involving more than one lawyer.

Many criminal provisions dealing with group crime impose personal liability, liability based directly on an action or failure to act of the person found liable. Other criminal provisions create vicarious liability, liability for a crime committed by another person. The Model Rules similarly use both personal liability and vicarious liability to deal with unethical conduct involving more than one lawyer.

Personal Liability

Model Rule 5.1(b) requires supervising lawyers to “make reasonable efforts to ensure” ethical conduct by lawyers working under them. The sheer number of meritless lawsuits is powerful evidence that many, if not all, of the lawyers who masterminded, engineered, and coordinated the bogus barrage violated Rule 5.1(b) by failing to exercise control over lawyers farther down in the hierarchy. Such failure is a personal violation by the supervising lawyer.

Model Rule 8.4(a) provides two additional relevant bases for personal ethical liability. First, it prohibits one lawyer from “assisting or inducing” another lawyer to violate an ethics rule. Second, it also forbids a lawyer from violating an ethics rule “through the acts of another.” Those on the Trump team who recruited and enlisted other lawyers in various states to file meritless suits violated both. So did partners in firms who assigned other lawyers to participate in and contribute to one of the bogus suits. The higher the lawyer was in the hierarchy, the more likely is such liability.

Vicarious Liability

The Model Rules also impose vicarious liability on supervisory lawyers. Just as managers of a drug organization or gang can be held criminally responsible under the law of conspiracy for acts by others they agreed to, encouraged, directed, or ratified, supervising lawyers are ethically responsible for unethical acts by other lawyers they agreed to, encouraged, directed, or ratified.

Model Rule 5.1(c) is the key provision here. It creates liability for a supervising lawyer who (1) “orders” or “ratifies” unethical conduct by a supervised lawyer or (2) fails to take “reasonable remedial action” after a subordinate’s unethical conduct. This Rule imposes vicarious ethical liability on supervising lawyers, whether they directed a national scheme to file baseless lawsuits or were a partner in a firm participating in a particular bogus suit so long as the lawyer knowingly supervised others and ordered or ratified unethical conduct by them. It does not matter whether the supervising lawyer was named in the pleadings as counsel or made an appearance in court.

Withdrawal as a Defense

In an apparent effort to distance themselves from the bogus barrage, some lawyers have withdrawn from the meritless lawsuits after filing them. Does such withdrawal protect a lawyer from liability for unethical conduct that took place before the withdrawal? Should it?

Criminal law provides some guidance in thinking about withdrawal as a defense. Typically, expression of regret or remedial steps taken after a crime has been committed do not cancel criminal liability. Similarly, a lawyer’s withdrawal from a frivolous lawsuit does not extinguish ethical or Rule 11 liability.

The Model Penal Code (MPC) does recognize an “abandonment” or “renunciation” defense to conspiracy and complicity liability. These provisions, though, make clear that withdrawal without additional remedial measures does not annul liability. An actor must additionally take steps to stop and neutralize what the actor helped set in motion. The renunciation defense to conspiracy requires that in addition to withdrawing, the actor must thwart the crime. In the complicity context, the MPC requires that the actor “wholly deprives [the actor’s prior assistance] of effectiveness” or gives “timely warning to the law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense.” These provisions illustrate and exemplify the commonsense idea that once a person has set something potentially harmful in motion, the person cannot absolve themselves of responsibility simply by walking away. The person must also take effective remedial measures.

The Model Rules do not explicitly set forth an abandonment defense. That fact alone, in our view, is sufficient to block any attempt to use simple withdrawal as a defense to ethics liability. The Model Rules indicate that more than withdrawal is required of a lawyer in such a situation.

Model Rule 1.16(a)(1) states that a lawyer “shall not represent . . . or . . . shall withdraw” from representation if “the representation will result in violation of the [Model Rules] or other law.” The ethical violations resulting from the bogus barrage are plentiful. Likely or possible violations of “other law” are also numerous, such as Rule 11, state election laws, the Voting Rights Act, and the Constitution.

Withdrawal was certainly necessary under Rule 1.16. In fact, it prohibited the Trump lawyers from taking on these representations in the first place. And Model Rule 3.3(b) required remedial action. It provides that a lawyer who “knows that a person . . . is engaging . . . in . . . fraudulent conduct . . . shall take reasonable remedial measures.”

While both withdrawal and remedial action were required, in our view withdrawal is not sufficient under the Model Rules to cancel liability for prior unethical conduct even if remedial steps are taken. Rather, withdrawal and remedial action, if taken, would only be potentially relevant in assessing proper disciplinary sanctions.

Possible Sanctions

Acceptance of Responsibility?

Judges routinely rely on a defendant’s acceptance of responsibility for and candid acknowledgment of wrongdoing when assessing appropriate criminal punishment. Both are also appropriate in assessing sanctions for ethical violations.

We are not aware of any lawyers, from the top to the bottom of the hierarchy of Trump lawyers, who have acknowledged their wrongdoing, the lack of evidence of voter fraud, or the lack of legal merit of the Trump lawsuits. Nor have any, to our knowledge, accepted responsibility for engineering and carrying out the bogus barrage. Rather, they have been silent or defiant or have continued in behavior that flaunts ethics rules. These failures should weigh heavily against them in the disciplinary process.

Deterrence

It is unlikely, in our view, that ethical sanctions would specifically deter lawyers such as Rudy Giuliani or Sidney Powell from making false statements and committing other future ethics violations. But sanctioning even some of the Trump lawyers would send a message likely to generally deter other lawyers, especially younger ones, from emulating their behavior. This is a powerful reason to impose serious sanctions, either disbarment or suspension, on Trump’s lawyers, especially those whose unethical conduct was outrageous and notorious.

Blameworthiness

Blameworthiness has long played a role in the calibration of criminal punishment. Many of the lawyers who perpetrated the bogus barrage had blameworthy mental states. Many, for example, must have known the suits lacked factual merit, that there was no supporting evidence of voter fraud. Even recklessness or negligence regarding the truth can be sufficient to warrant ethical sanction.

The ABA Model Rules for Disciplinary Enforcement state that a “dishonest or selfish motive” is an aggravating factor in choosing a sanction. The advocacy of false claims is obviously dishonest. And the goal of delaying or derailing a lawful election process to advance Trump’s (or their own) political ambitions qualifies as selfish. Some lawyers also appear to have been selfishly motivated by pecuniary gain both to encourage contributions to Trump’s campaign coffers and to gain or retain a lucrative source of business.

Incapacitation

Although ethical sanctions would not incapacitate lawyers such as Giuliani and Powell and other high-profile offenders the way prison incapacitates a criminal, their capacity to act as lawyers could be taken away. They would not be able to file bogus suits, appear in court, or represent anyone. Their ability to draw attention to themselves by professing to speak about the law with authority and to influence young lawyers who might view them as role models, though not completely eliminated, would be reduced if it was widely known they had lost their licenses.

Conclusion

Some legal ethics experts have expressed the view that, while many ethics rules have been violated, it is doubtful disciplinary authorities will act. They have observed that disciplinary authorities often fail to act if they fear such action may be viewed as “political.” If ethics authorities do fail to act due to such a fear, in our view such inaction will be badly misguided. The lawyers who made, promoted, and enabled the baseless claims of voter fraud in more than 50 lawsuits should face discipline as much as, and perhaps more than, any other lawyer, for a number of reasons.

In addition to the sheer number of violations and violators, these lawyers disregarded their oaths to uphold the Constitution and the rule of law by misusing judicial processes to overturn a valid election. Precisely because they are lawyers sworn to uphold the rule of law, they gave a false patina of legitimacy to meritless claims. Treating such conduct as “political” and thus exempt from sanction would prevent ethics rules from operating in a context in which they are particularly important, the protection of our constitutional democracy.

Failure to discipline lawyers engaged in so flagrantly pushing false accusations about election fraud would send a message that there is no cost attached to violating ethics rules and the lawyer’s oath of office when a lawyer is representing a political candidate, campaign, or their proxies. Bar authorities would set a dangerous precedent that would green light such meritless cases in the future whenever there is a political sore loser. The consequence would be the same as if prosecutors and police announced they would no longer enforce the law—an invitation to lawlessness and chaos.