US election: Trump’s election fraud cases raise professional ethics concerns

Jennifer Venis, IBA Multimedia JournalistMonday 8 February 2021

After President Joe Biden’s election win in November, the Trump administration and its allies launched a suite of lawsuits to attempt to overturn the result and secure Donald Trump a second term. Lawyers involved in bringing these proceedings have faced criticism on the basis of professional ethics concerns.

By the end of 2020, the US Supreme Court had already shut down two attempts to overturn the results of the election. The Court’s decisions followed a wave of lawsuits from the Trump administration and allies that sought to overturn the election results in lower courts.

In the aftermath of the election, lawyers for then-President Trump and his allies filed at least 60 lawsuits regarding alleged election fraud, despite local and national election officials deeming November’s election the most secure in US history. The campaign lost 59 cases and had won only one so far, regarding a minor order that cut the deadline for fixing errors on rejected ballots by three days.

No matter how unsavoury the client or the argument, that alone shouldn’t be enough to disbar these individuals

Jeffrey Merk
Co-Chair, IBA Professional Ethics Committee

Some of the claims could not have changed the outcome of the election even if they were successful, and some relied on speculation or conspiracy theories from social media. The suits were widely condemned, including by members of the legal profession and presiding judges.

Lawyers involved in the proceedings have faced questions about their commitment to professional ethics – not only for engaging in suits that could disenfranchise millions of legitimate voters, but for bringing cases that do not meet basic evidentiary requirements, among other standards.

In Donald J Trump for President v Boockvar, the Trump campaign sought to reverse the certification of Pennsylvania’s votes. Judge Matthew Brann was scathing in the Court’s dismissal of the claims: ‘This Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence. In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state’, he said.

A number of attorneys withdrew from the case ahead of the decision in Boockvar, and were replaced by Trump lawyer Rudolph W Giuliani.

In late November, Representative Bill Pascrell Jr of New Jersey filed complaints with ethics boards in five states, calling for members of then-President Trump’s legal team to be investigated and disbarred. In his letter to New York’s attorney grievance committee – where Giuliani is licensed to practise – Pascrell Jr alleged that Giuliani had ‘used our nation’s courts to assault public confidence’ in the US electoral system, violating the New York Rules of Professional Conduct.

Responding to Pascrell Jr’s complaints, several Republican Representatives wrote that Trump ‘has the right to retain counsel to represent him’.

The New York State Bar Association announced in mid-January that it has launched an investigation into whether Giuliani should be disbarred as a member, as a result of his involvement in attempts – legal and beyond – to overturn the election results.

Jeffrey Merk, Co-Chair of the IBA Professional Ethics Committee and a partner at Aird & Berlis, emphasises that politics, and the divisive nature of former President Trump and these cases, shouldn’t play a role in evaluating lawyers’ potential ethical breaches.

‘No matter how unsavoury the client or the argument, that alone shouldn’t be enough to disbar these individuals’, he says. ‘Only a proper analysis of the facts and circumstances in light of their ethical obligations for their particular states should be relevant to disbarment or disciplinary decisions, and those decisions will be of great interest to our Committee going forward.’

In early December, more than 1,500 lawyers echoed Pascrell Jr’s concerns in an open letter urging the American Bar Association to investigate the Trump team’s conduct, and 25 former presidents and a former CEO of the District of Columbia Bar called lawyers’ involvement in these cases ‘deeply troubling’ in a Washington Post opinion article.

The article highlighted that ‘core principles of professional ethics prohibit lawyers from becoming instruments in a campaign to use the courts to foment unfounded attacks on the integrity of the most basic institution of our democracy’, and said ‘lawyers may not ethically repeat in a lawsuit an assertion of fraud, unless they have first assured themselves that there is a sound factual basis for such a serious charge’.

Merk says he and the Committee would agree that these cases may raise professional ethics concerns to be investigated and could lead to sanctions if bar rules have been breached. Although specific rules differ between jurisdictions, he says generally ‘lawyers have an obligation not to bring cases that are without merit or are frivolous, or otherwise bring the justice system into disrepute by bringing the claim’.

He shares the concern raised by many other members of the legal profession, that if investigations into these lawyers lead to any disbarments, the reputation of the legal profession would likely be damaged.

Damage has, however, undoubtedly already been done to faith in the election process and democratic norms in the US, and the involvement of the legal community had been made somewhat inevitable. Even before he lost the election, then-President Trump had been telling supporters not to accept a result that did not secure his victory, because that, he claimed, could only be the result of widespread voter fraud.

Ahead of the election, there had been concerns of a repeat of Bush v Gore, when the Supreme Court had the deciding vote on the 2000 presidential election. Nodding to the potential for such an outcome, then-President Trump had secured a 6-3 conservative majority in the Court by having his final nomination, Justice Amy Coney Barrett, confirmed immediately beforehand.

Yet, on the eve of the formal electoral college vote in mid-December, which confirmed Biden’s victory, the Supreme Court rejected a suit from Texas Attorney General Ken Paxton. Filed directly with the Court, the lawsuit sought to invalidate US votes in four states with a combined 62 electoral college votes.

The Court concluded Paxton had ‘not demonstrated a judicially cognisable interest in the manner in which another state conducts its elections’. Paxton had tried to sue Georgia, Michigan, Pennsylvania and Wisconsin on the basis that the alleged failure of those states’ officials to prevent alleged election fraud diminishes the ‘weight of votes cast in states that lawfully abide by the election structure set forth in the constitution’.

The Trump campaign had joined the suit, alongside 17 Republican attorneys general and 126 Republican members of the US House of Representatives.

The blow came shortly after the Supreme Court unanimously rejected Republican congressman Mike Kelly’s attempt to prevent Pennsylvania certifying Biden’s victory and to invalidate 2.5 million mail-in ballots. Several courts, including the Pennsylvania Supreme Court, had already rejected the suit, which had argued that the mail-in programme passed by the Republican-controlled legislature in 2019 violated the state’s constitution.

The results were deeply disappointing to Trump and his supporters. In a statement following the dismissal of Paxton’s suit, Texas Republican Party Chairman Allen West even suggested ‘law-abiding states’ might create a new union of states ‘that will abide by the Constitution’.

The US Supreme Court verdicts marked the setting of the sun on the attempts to use legal action to retain power, but Trump still did not concede the election until 7 January. The day before, a mob of supporters spurred on by his claims that the election had been stolen infiltrated the Capitol building during the formal confirmation proceedings for Biden’s win. Congresspeople and building staff report fearing for their lives, but ultimately Congress confirmed Joe Biden as the winner of the US presidential election.

Trump has been impeached for a second time and faces an impeachment trial at the US Senate, charged with inciting the insurrection in a speech to supporters prior to the mob attack on the Capitol. Days before the riot, Trump was already facing calls for impeachment in light of a leaked call in which he pressed Georgia’s Secretary of State, Brad Raffensperger, to ‘find’ him 11,780 votes to overturn the state’s election.