It’s no surprise that a presidential election as bitterly fought as last November’s should also yield a lot of litigation—and a striking volume of complaints from lawyers regarding the conduct of other lawyers. Although many lawyers were involved in the electoral challenges, the spotlight here is on complaints regarding four prominent lawyers.
- Thousands of law students and lawyers signed a petition to disbar U.S. Sen. Josh Hawley for his objections to certified presidential election results.1 Hawley was the first member of the Senate to announce he would object on January 6 to certification of electoral college results.
- The Lawyers Defending American Democracy (LDAD), a large group of prominent lawyers, filed a lengthy complaint against Rudolph Giuliani, centering on his allegedly false claims of widespread voter fraud. In addition to serving as President Trump’s lead litigation attorney, Giuliani also spoke frequently in the media and to state legislatures.
- Courts in several jurisdictions are deliberating whether to sanction or discipline lawyers who sued to invalidate presidential election results. One of these lawyers is Sidney Powell, who represented several groups in electoral challenges and was, for a time, a member of the Trump-Giuliani litigation team.
- L. Lin Wood is under investigation by the Georgia bar discipline agency for numerous extraordinary and incendiary statements regarding John Roberts, Mike Pence, Antonin Scalia, and others, at rallies, on social media, and in interviews.2 The agency is also investigating Wood’s conduct both as a lawyer and as a party in several litigation challenges to election results.
How would a discipline agency handle these complaints? Having reviewed complaints against lawyers and judges for 40 years, I offer one lawyer’s expectations.
Fairness, consistency, and adherence to constitutional constraints are the most important hallmarks of a properly run discipline agency. They are crucial where the setting is politics verging on warfare. Because it is not fair to reach conclusions on discipline issues without hearing the accused lawyers’ side of the story, the focus here is on how discipline agencies would approach the allegations in the complaints.
Precedents
The precedents for professional discipline of lawyers acting in political settings show both the propriety of some disciplines and the danger of being caught up in popular passions. Thirty years ago, the Minnesota Supreme Court disciplined U.S. Senator David Durenberger and two of his lawyers for backdating and falsely notarizing documents supporting U.S. Senate reimbursements for rental payments that Durenberger had not yet made.3
Conversely, two cases from a century ago show how discipline systems can be misused. In 1917, the Minnesota State Bar Association commenced disbarment proceedings against Albert Pfaender, a state senator. Pfaender’s alleged offense was speaking out against United States entry into World War I. Gov. Joseph Burnquist removed Pfaender from his position as New Ulm City Attorney, finding “malfeasance in office.” Under great pressure, Pfaender apologized and recanted.
On the same basis, Burnquist removed from office Dodge County Probate Judge James Martin.
The Minnesota Supreme Court found Judge Martin’s public statements to be “clearly at variance with good citizenship, and contrary to the obligations every citizen owes to the government of his country.” Nonetheless, the Court wisely based its holding on a broader perspective: “But we are clear that scolding the President of the United States, particularly at long range, condemning in a strong voice the war policy of the federal authorities, expressing sympathy with Germany, justifying the sinking of the Lusitania, by remarks made by a public officer of the jurisdiction and limited authority possessed by the judge of probate under the Constitution and laws of this state, do not constitute malfeasance in the discharge of official duties, and therefore furnish no legal ground for removal.”4 Today a discipline agency would likewise separate the issue of whether lawyers’ conduct was consistent with good citizenship from the issue of whether lawyers violated disciplinary rules. If rule violations were found, issues such as whether the conduct was inimical to democracy or the rule of law could be considered in determining the severity of discipline.
Heightened constitutional scrutiny applies to content-based prohibitions of speech, including prohibitions on false speech. The prohibition must serve a compelling state interest and there must not be a less restrictive alternative.
Constitutional protections
Today we would regard Pfaender’s and Martin’s statements as protected by the First Amendment. The highest standard of review protects speech whose content is the basis for penalty. The First Amendment allows robust free speech when advocates call for public demonstrations against perceived governmental misconduct. The leading case requires that to sustain a charge of “inciting a riot,” there must be proof of (1) intent to incite; (2) imminence of a riot; and (3) likelihood the statement will incite a riot.5
The protection of due process of law applies to lawyer discipline proceedings.6 Due process requires fair notice of the alleged basis for discipline. Fair notice includes specific allegations of violation of one or more Rules of Professional Conduct. A tribunal may not impose discipline for violation of a rule whose violation was not alleged in the operative pleading.7 Alleged violations of an attorney’s oath or of the general norms stated in the rules’ preamble are not a basis for discipline, although they may be considered along with other general norms in determining the degree of discipline.
A century after Pfaender and Martin, a discipline agency would also be mindful of discipline and bar admission cases in which proponents sought to exact penalties for political purposes. For example, authorities in the American South tried to block civil rights progress by disciplining attorneys and commencing defamation actions.8 In evaluating complaints against election lawyers, an agency would consider whether discipline charges would unduly stretch constitutional theories and interpretations of discipline rules, and would prove to be short-sighted.
Criminal, civil, and discipline procedural relationships
For several reasons, a discipline agency normally awaits the outcome of a civil or criminal case against a lawyer before considering disciplinary action: Resources are conserved; the agency may lack the resources to investigate alleged crimes; inconsistent outcomes are avoided; and it may be unfair to the lawyer to demand candor and cooperation that are not required in criminal investigations. The Minnesota Office of Lawyers Professional Responsibility advises would-be complainants, “Examples of complaints that are often dismissed without investigation include:... most matters pending in court, unless the misconduct is clear and serious.”9 However, a discipline agency may not await outcomes in other forums where misconduct is flagrant.
Disciplinary allegations must be proved by “clear and convincing evidence.” The normal civil standard of proof is the lower one of “preponderance of the evidence.” Therefore, civil findings, including those supporting sanctions, are not preclusive in discipline proceedings, but they may be considered.10 Because the “beyond a reasonable doubt” standard of criminal proceedings is higher than its disciplinary counterpart, a criminal conviction is preclusive in a discipline proceeding.
Did Hawley commit a criminal act?
Rule 8.4(b) forbids a lawyer to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” The petition alleges that Hawley “flagrantly” violated ethics rules, including that he “potentially” committed “a criminal act.” Combining “flagrant” and “potential” reveals a rush to accuse that impairs the petition’s credibility.
A later, more formal complaint against Hawley alleges “potential” crimes, including inciting a riot. But the complaint’s specification of the elements of the potential crime raises more questions than it answers. How would Hawley’s December 30 announcement of intent to object to certification of the election on January 6 satisfy the First Amendment imminence standard? How could Hawley’s auto-scheduled fundraising message—cited in the complaint, but disseminated after rioters had already invaded the Capitol—cause the invasion? Would any of the insurrectionists testify that Hawley incited them? Is a raised fist not a ubiquitous gesture with a variety of meanings, riotous and otherwise? How and why should Missouri disciplinary counsel investigate alleged criminal incitement of a riot in Washington D. C., rather than await the outcome of any criminal investigation by U.S. and D.C. authorities? Although the LDAD complaint against Giuliani cites his invitation on January 6 for the crowd to engage in “trial by combat,” the complainants—perhaps recognizing the barriers to investigation and proof—do not allege a Rule 8.4(b) violation.
Hawley, Giuliani, Powell: Knowingly false statements?
Rule 8.4(c) proscribes “dishonesty, fraud, deceit, or misrepresentation.” Rule 8.4(c) applies to conduct in or outside the practice of law. Minnesota case law is mixed on whether the “misrepresentation” proscribed by the rule requires intent.11
The Hawley complaint alleges that Hawley repeatedly and publicly claimed that Pennsylvania failed to follow its own election laws. Citing two cases, the complaint alleges, “Sen. Hawley directly contradicted the rulings of federal and state courts across the country, particularly in Pennsylvania.” In one case, the Pennsylvania Supreme Court dismissed, as untimely, a suit that claimed universal mail-in voting was not permitted under Pennsylvania law. The case did not reach the merits of the claim of plaintiff and of Hawley. In the other cited case, plaintiffs claimed that Pennsylvania officials improperly “let voters fix technical defects in their mail-in ballots.” In dismissing this claim, the court said, “This case is not about whether those claims are true.”12 A discipline agency might ask the complainants: “The cases you cite are dismissals on procedural grounds. Do you still maintain, ‘Sen. Hawley directly contradicted the rulings of federal and state courts... in Pennsylvania?’ Please cite the relevant section of any court opinion that rejects Hawley’s claims regarding Pennsylvania mail-in voting on the merits.”
Complaints by Michigan Gov. Gretchen Whitmer and others against Sidney Powell allege that Powell knowingly offered false evidence from pseudo-experts. Revelations of the identities and lack of qualifications of the purported experts may well lead discipline authorities to inquire of Powell what she knew, when she knew it, and why she presented as experts persons who lacked expertise and who made extravagant statements that were readily disproved.
The LDAD complaint alleges both that Giuliani repeatedly alleged a pattern of criminal voter fraud in several states and made allegations as to specific instances of fraud. A discipline agency might well notify Giuliani that it was investigating his claims of fraud, both broadly and narrowly made. The agency might well request Giuliani to state whether he made these allegations, whether he continues to claim the allegations are true, and what basis he has for his allegations. The agency might cherry-pick any other allegations that appear susceptible to determinations of truth or falsity without unduly complicated investigation. When a complaint alleges many violations, a discipline agency will often focus on the marquee attractions—the allegations that appear most serious and most readily proved or disproved.
The Giuliani complaint and many commentaries on election litigation have said that fraud and other theories have been “debunked” by many courts. The devil may or may not be in the details. Fraud was not alleged in many of the cases. Many cases were dismissed on procedural grounds. A discipline authority would carefully match the cases in which fraud allegations were made and rejected on the merits with the fraud allegations made by the respondent attorneys.
Dominion Voting Systems (DVS) and Smartmatic have commenced defamation suits against Giuliani, Powell, and others. Smartmatic alleges that Guiliani stated on national television that Smartmatic was founded by Venezuelans close to Hugo Chavez “in order to fix elections.” DVS alleges that Giuliani persistently stated publicly that the DVS machines were manipulated so that many votes for Trump were counted for Biden. DVS also alleges that investigations by William Barr, DOJ, DHS, and Georgia election officials all found no evidence supporting Giuliani’s statements but Giuliani nonetheless persisted. These are the kinds of important and specific allegations on which a discipline agency might well concentrate. A discipline agency might write to DVS, “Please keep this agency advised of developments in your litigation, and in particular....” The agency might also ask Giuliani to provide all evidence supporting his accusations
Heightened constitutional scrutiny applies to content-based prohibitions of speech, including prohibitions on false speech. The prohibition must serve a compelling state interest and there must not be a less restrictive alternative. In invalidating the Stolen Valor Act, the United States Supreme Court found that counter-speech, rather than the prohibition on falsely claiming to be a Medal of Honor winner, would serve the Act’s purpose. On the other hand, a Minnesota statute penalizing intentionally false campaign speech was upheld because it served the interest of an informed electorate. In upholding the statute, the Minnesota Court of Appeals stressed that it penalized only intentional false statements. With these standards in mind, the discipline agency would ask: Is counter-speech, rather than discipline, a sufficiently effective deterrent to post-election false statements that allegedly undermine voter confidence in campaign results and the election system? Can the statements be proved to be knowingly false?13
Rule 1.0(g) defines “knowledge” as “actual knowledge,” but adds that knowledge may be inferred from circumstances. A lawyer may not claim a lack of knowledge while turning a blind eye to the obvious. In determining whether a lawyer knew a statement was false, an agency would ascertain whether, when, and how the truth of the matter was clear. If a fact was clearly established, and the lawyer continued to assert the contrary, the agency would ask for an explanation.
In evaluating Rule 8.4(c) complaints, an agency would consider possible ramifications of imposing discipline for false claims of voter fraud. What if a lawyer wrote a letter to the editor that echoed Giuliani’s claims, even after debunking by Barr et al.? What if a lawyer-legislator signed a group petition with similar claims? Would they be subject to discipline? To what degree do the Pfaender and Martin cases teach discipline authorities to tread lightly in political matters? On the other hand, if on demand the respondent attorneys cannot produce any credible evidence supporting their claims of fraud, will a discipline proceeding aid in demonstrating important truths to the public, thereby helping to restore faith in the electoral process?
Frivolous pleadings?
Rule 3.1, R. Prof. Conduct and Rule 11, R. Civ. Proc. both proscribe frivolous pleadings. Of one election challenge, a federal judge wrote, “Plaintiffs’ theory... lies somewhere between a willful misreading of the Constitution and fantasy. It is not a stretch to find a serious lack of good faith here.... Yet even that may be letting Plaintiffs off the hook too lightly.... Courts are not instruments through which parties engage in such gamesmanship or symbolic political gestures.”14 Numerous courts harshly criticized pleadings they dismissed, as lacking a basis in fact or law. Several orders to show cause and sanctions motions are pending. L. Lin Wood attested that one of his pleadings was made “under plenty [sic] of perjury,” but he later fixed the typo.
A Rule 3.1 charge is seldom brought without a prior civil finding. And the Supreme Court has cautioned, “We are concerned that overzealous application of Rule 3.1 may hinder the development of law by discouraging attorneys from bringing issues of first impression or good faith arguments for the extension, modification or reversal of existing law....”15 On the other hand, the Court has found Rule 3.1 violations that are not preceded by Rule 11 violations, in part because Rule 3.1 does not include Rule 11 procedural defenses, such as dismissing a suit within a safe harbor period.16
In evaluating complaints of frivolous litigation, a discipline agency would likely ask: Are judicial proceedings pending or complete for imposing sanctions or making findings that pleadings lack a basis in fact or law? If not, are there nonetheless some allegations that appear obviously frivolous on their face? If not, is there an undue burden in investigating claims of fact or law?
L. Lin Wood: Attacks on judges and legal officials, fitness
Rule 8.2(a), R. Prof. Conduct provides, “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge....” Three of the statements by Wood under investigation in Georgia are: (1) “Corruption & deceit have reached the most powerful office in our country – the Chief Justice of U.S. Supreme Court. Roberts is reason that SCOTUS has not acted on election cases. Justice John Roberts is corrupt & should resign immediately.” (2) “I have linked Roberts to illegal adoption, Jeffrey Epstein, pedophilia & prior knowledge of Scalia’s death.” (3) “Pence is on videos captured by FBI. Discussions about murdering judges. [CJ] Roberts was involved.” Before initiating a discipline inquiry, Georgia authorities requested that Wood undergo a mental health exam, which he declined.
Minnesota attorneys have been suspended for making false, baseless allegations about the integrity of judges. The Court adopted an objective standard for such allegation, because a false accusation concerning judicial integrity “adversely reflects on the accuser’s capacity for sound judgment.”17 Wood’s accusations have a lesser counterpart in Minnesota. A lawyer who made numerous scurrilous statements, including anti-Catholic slurs (“Jesuitess”), about judges and court personnel, was sanctioned and later suspended from practice.18
Pro hac vice revocations
After an attorney has been admitted to practice pro hac vice, the attorney’s right to appear may not be revoked without a hearing and a showing of good cause. However, the standards for pro hac revocation often are not as strict or specific as those for discipline in the lawyer’s home state and revocation procedures move much more quickly than discipline matters. For example, in Delaware the revocation standard is whether continued admission is “inappropriate or inadvisable.” A Delaware judge revoked Wood’s admission because Wood did not show an “appropriate level of integrity and competence” in election challenges in Georgia (which the judge found to be “textbook frivolous litigation”) and Wisconsin (which the judge found to show Wood as “mendacious or incompetent”).19 Shortly after the Delaware revocation, lawyers opposing Wood in a New York case moved to have his pro hac admission revoked in New York.20 Lawyers with a national litigation practice, such as Wood and Powell, might well face a series of pro hac revocation motions and opposition to future pro hac admissions.
Interim suspension
In the extraordinary circumstance that a lawyer’s continued authority to practice law during discipline investigation and proceedings poses a substantial threat of serious harm to the public, the discipline agency may petition the state Supreme Court for an immediate suspension. The LDAD complaint seeks Giuliani’s suspension during investigation and proceedings. The complaint argues, “The Committee already has ‘uncontroverted evidence of professional misconduct’ because Mr. Giuliani has committed his violations in the public eye.” A disciplinary agency would question whether the public nature of Giuliani’s statements renders their truth or falsity, or Giuliani’s state of mind, “uncontroverted.” A leading commentator endorsed the interim suspension request, but also said that the discipline process “could take months, or even years,” due to its complexity. The agency would question how key allegations could be at once “uncontroverted,” “complex,” and challenging to investigate and adjudicate.21
In contrast, the statements attributed to L. Lin Wood by the Georgia bar, regarding John Roberts and others, are so manifestly false and wild that, if Wood admits (or cannot credibly deny) having made the statements, his immediate suspension might well be sought. Remorse and reform seem unlikely, as Wood has called for followers to investigate the Georgia bar.
Rising to the occasion?
What if, after all the limits, cautions, and considerations described above, an agency concludes that a lawyer did persistently and knowingly make false public statements, or take litigation positions not supportable by fact or law, or was convicted of a crime?
Well, then the agency should vigorously seek severe discipline. Lawyers take an oath to support the truth and the rule of law and those who instead gravely damage these ideals should lose their licenses. A common theme in discipline opinions is whether an attorney’s conduct impaired the public’s faith in the administration of justice or in the legal profession. One of the first OLPR directors told me that the chief justice told him to err on the side of zeal, because the Court could temper excess zeal, but could not act where OLPR did not act first. Distinguishing a time to rise to the occasion from a time to pay heed to limits of a professional responsibility system calls for zeal, balanced by wisdom and prudence.
An agency also would consider possible challenges in managing a discipline proceeding. Might the respondent turn the proceeding into political theater, in which every purported expert and witness to voter fraud was called as a defense witness? Or exercise discovery rights by deposing various political figures? Or recruit followers who might disrupt proceedings?
Conclusion
Discipline investigations and proceedings often last years, especially when stayed to await the results of criminal or civil proceedings. Many disciplinary agencies decline to confirm pendency of an investigation unless and until public charges are made.22 However, complainants and respondents have a constitutional right to make public their knowledge of the discipline agency’s actions.
Will any of the attorneys identified above be disciplined?
I cannot say, but a few general expectations may be hazarded. Discipline agencies will be reluctant, without prior court findings, to investigate allegations of complicated facts in distant places. It would be extraordinary, without a prior criminal conviction, for a discipline agency to allege that an attorney committed a crime. Any attorneys who are found in criminal or civil proceedings to have engaged in wrongful conduct will likely face follow-on disciplinary charges. In some cases, a discipline agency might borrow from the First Amendment concept of whether “counter-speech,” rather than discipline, is the best remedy to allegedly false speech. If an attorney has engaged in flagrantly false accusations or meritless litigation, the attorney well be subject to discipline charges even without prior court sanctions.
Finally, we can make one prediction confidently: The disciplinary aftermath of the 2020 elections will produce surprises, controversy, and publicity. How could it be otherwise?
Notes
1 Petition to Disbar Senators Hawley and Cruz. The Petition is considered here only as it applies to Hawley, not Cruz. LDAD’s website has a copy of the LDAD complaint. https://lawyersdefendingdemocracy.org/statements/.
2 Wood confirmed the complaint on his Telegram account and has uploaded the inquiry on Dropbox.
3 In re Durenberger, 464 N.W.2d 498 (Minn. 1991); In re Johnson, 462 N.W.2d 598 (Minn. 1990); In re Mahoney, 474 N.W.2d 598 (Minn. 1991).
4 Minn. State Bar Ass’n, For The Record: 150 Years of Law & Lawyers In Minnesota 257 (1999); State ex rel. Martin v. Burnquist, 141 Minn. 308, 322, 170 N.W. 201, 203 (1918).
5 Brandenburg v. Ohio, 395 U.S. 444 (1969).
6 In re Ruffalo, 390 U.S. 544, 551 (1968); In re Rerat, 224 Minn. 124; 28 N.W.2d 168 (1947).
7 In re Charges of Unprofessional Conduct in Panel File No. 42735, 2019 WL 1051406 (Minn. 2019); Minnesota Legal Ethics Blog, Dec. 2016 http://my.mnbar.org/blogs/williamwernz/2016/12/14/in-re-olson-and-state-v-whitcup-a-prosecutors-travails-and-vindication?CommunityKey=06b06e45-74ca-4cf9-ae84-fede75b8e1b5&Tab=.
8 James E. Moliterno, “Politically Motivated Bar Discipline,” 83 Wash. U. L.Q. 725 (2005).
9 http://lprb.mncourts.gov/complaints/LawyerComplaintDocs/Complaint%20Brochure%20-%20English.pdf
10 Rule 19(a), R. Law. Prof. Resp. In re Murrin, 821 N.W.2d 195, 205 (Minn. 2012).
11 William J. Wernz, Minnesota Legal Ethics (10th Ed. 2020) at 1408 et seq.
12 Kelly v. Commonwealth, 240 A.3d 1255 (Pa. 2020); Donald J. Trump for President, Inc. v. Sec’y of Pennsylvania, 830 Fed. App’x 377, 382 (3d Cir. 2020).
13 United States v. Alvarez, 567 U.S. 709 (2012); Linert v. MacDonald, 901 N.W.2d 664 (Minn. Ct. App. 2017).
14 Wisconsin Voters Alliance et al. v. Pence et al., Civ. File No. 20-3791 (JEB), U.S. Dis. Ct. D.C., 1/4/2021.
15 In re Panel Case No. 15976, 653 N.W.2d 452, 457 (Minn. 2002).
16 “[A] decision by a district court to not issue sanctions is of limited import in a disciplinary action because ‘[c]onsiderations for imposing ethical sanctions differ from considerations of Rule 11 sanctions.’ In re Panel Case No. 17289, 669 N.W.2d 898, 905 (Minn. 2003).” In re Ulanowski, 800 N.W.2d 785 (Minn. 2011).
17 In re Graham, 453 N.W.2d 313, 322 (Minn. 1990); In re MacDonald, 906 N.W.2d 238 (Minn. 2018).
18 In re Nett, 839 N.W.2d 716 (Minn. 2013). To make the slurs even odder, the court personnel apparently were not in fact Catholic.
19 Page v. Oath, Inc., 2021 De. Super. LEXIS 27.
20 Josh Gerstein, Move Underway to Oust Wood from Libel Suit, Politico, 1/25/2021.
21 Rule 16(a), R. Law. Prof. Resp. Daniel Slotnik, “Prominent Lawyers Want Giuliani’s Law License Suspended Over Trump Work,” N.Y. Times, Jan. 22, 2021 at A18.
22 Minnesota’s system is more open than most, and when the subject of a discipline complaint has already been the subject of publicity, OLPR will normally confirm that it is investigating the matter.