Neither the post-election buffoonery of Trump’s lawyers nor the state attorneys generals’ contempt for their oaths in filing and joining the frivolous Texas lawsuit could have done much to improve the public’s already low opinion and general distrust of lawyers. Some might think that if you represent the president, they let you do it. Others might conjecture that a largely self-regulated profession simply protects its own.
Are lawyers governed by rules – rules with actual consequences for their violation – that prohibit filing frivolous lawsuits and lying to judges; rules that permit only evidence-based claims and only after competent inquiry and due diligence; rules that mandate candor with the court?
A federal judge in the Eastern District of Michigan thinks so.
Would be nice if the United States Supreme Court had a measure of her ethical fortitude, enough to send a resounding message, enough to sanction the Texas Attorney General and seventeen other attorneys general, order them to pay the attorney fees incurred by several states forced to respond to a case that had no merit and zero chance of success (other than messaging to a faction that election integrity in the United States is in doubt) and refer them to their state bar licensing authorities for appropriate discipline, including possible disbarment.
I previously posted on this subject: Shame on Lawyers and Attorneys General the Likes of Sean Reyes.
On August 25, 2021, Honorable Linda V. Parker issued a 110-page blistering decision on the City of Detroit’s motion to sanction lawyers who filed a lawsuit in her court to challenge the election. Granting the motion for sanctions, Judge Parker explained how it’s designed to work, and what happens, or should, when lawyers flout the rules.
“This lawsuit represents a historic and profound abuse of the judicial process. It is one thing to take on the charge of vindicating rights associated with an allegedly fraudulent election. It is another to take on the charge of deceiving a federal court and the American people into believing that rights were infringed, without regard to whether any laws or rights were in fact violated. This is what happened here.
“Individuals may have a right (within certain bounds) to disseminate allegations of fraud unsupported by law or fact in the public sphere. But attorneys cannot exploit their privilege and access to the judicial process to do the same. And when an attorney has done so, sanctions are in order.
“Here’s why. America’s civil litigation system affords individuals the privilege to file a lawsuit to allege a violation of law. Individuals, however, must litigate within the established parameters for filing a claim. Such parameters are set forth in statutes, rules of civil procedure, local court rules, and professional rules of responsibility and ethics. Every attorney who files a claim on behalf of a client is charged with the obligation to know these statutes and rules, as well as the law allegedly violated.
“Specifically, attorneys have an obligation to the judiciary, their profession, and the public (i) to conduct some degree of due diligence before presenting allegations as truth; (ii) to advance only tenable claims; and (iii) to proceed with a lawsuit in good faith and based on a proper purpose. Attorneys also have an obligation to dismiss a lawsuit when it becomes clear that the requested relief is unavailable.
“This matter comes before the Court upon allegations that Plaintiffs’ counsel did none of these things. To be clear, for the purpose of the pending sanctions motions, the Court is neither being asked to decide nor has it decided whether there was fraud in the 2020 presidential election in the State of Michigan. Rather, the question before the Court is whether Plaintiffs’ attorneys engaged in litigation practices that are abusive and, in turn, sanctionable. The short answer is yes.
“The attorneys who filed the instant lawsuit abused the well-established rules applicable to the litigation process by proffering claims not backed by law; proffering claims not backed by evidence (but instead, speculation, conjecture, and unwarranted suspicion); proffering factual allegations and claims without engaging in the required prefiling inquiry; and dragging out these proceedings even after they acknowledged that it was too late to attain the relief sought.
“And this case was never about fraud—it was about undermining the People’s faith in our democracy and debasing the judicial process to do so.
“While there are many arenas—including print, television, and social media—where protestations, conjecture, and speculation may be advanced, such expressions are neither permitted nor welcomed in a court of law. And while we as a country pride ourselves on the freedoms embodied within the First Amendment, it is well-established that an attorney’s freedom of speech is circumscribed upon ‘entering’ the courtroom.
“Indeed, attorneys take an oath to uphold and honor our legal system. The sanctity of both the courtroom and the litigation process are preserved only when attorneys adhere to this oath and follow the rules, and only when courts impose sanctions when attorneys do not. And despite the haze of confusion, commotion, and chaos counsel intentionally attempted to create by filing this lawsuit, one thing is perfectly clear: Plaintiffs’ attorneys have scorned their oath, flouted the rules, and attempted to undermine the integrity of the judiciary along the way. As such, the Court is duty-bound to grant the motions for sanctions . . . .”
Judge Parker then recounted in detail the devastating case history of lawyer dishonesty, incompetence and widespread violations of federal law, court rules and ethical mandates.
In conclusion, she said:
“. . . Plaintiffs’ counsel filed this lawsuit in bad faith and for an improper purpose. Further, they presented pleadings that (i) were not ‘warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or establishing new law’ and (ii) contained factual contentions lacking evidentiary support or likely to have evidentiary support. Finally, by failing to voluntarily dismiss this lawsuit on the date Plaintiffs’ counsel acknowledged it would be moot and thereby necessitating the filing of motions to dismiss, Plaintiffs’ attorneys unreasonably and vexatiously multiplied the proceedings.
“For these reasons (and not for any conduct that occurred on appeal), the Court holds that sanctions against Plaintiffs’ counsel are warranted . . . . Sanctions are required to deter the filing of future frivolous lawsuits designed primarily to spread the narrative that our election processes are rigged and our democratic institutions cannot be trusted. Notably, many people have latched on to this narrative, citing as proof counsel’s submissions in this case. The narrative may have originated or been repeated by Former President Trump and it may be one that ‘many Americans’ share; however, that neither renders it true nor justifies counsel’s exploitation of the courts to further spread it.
“This lawsuit should never have been filed. The State Defendants and the Intervenor-Defendants should never have had to defend it. If Plaintiffs’ attorneys are not ordered to reimburse the State Defendants and the City for the reasonable fees and costs incurred to defend this action, counsel will not be deterred from continuing to abuse the judicial system to publicize their narrative. Moreover, this Court has found that Plaintiffs’ counsel initiated this litigation for an improper purpose, rendering this the “unusual circumstance” in which awarding attorneys’ fees is warranted.
“Further, given the deficiencies in the pleadings, which claim violations of Michigan election law without a thorough understanding of what the law requires, and the number of failed election-challenge lawsuits that Plaintiffs’ attorneys have filed, the Court concludes that the sanctions imposed should include mandatory continuing legal education in the subjects of pleading standards and election law.
“Lastly, the conduct of Plaintiffs’ counsel, which also constituted violations of the Michigan Rules of Professional Conduct, see, e.g., MRPC 3.1 and 3.3, calls into question their fitness to practice law. This warrants a referral for investigation and possible suspension or disbarment to the appropriate disciplinary authority for every state bar and federal court in which each attorney is admitted . . . .”
The relevant ethical rules on which she relies are as follows:
Rule 3.1. Meritorious Claims and Contentions.
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good-faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
Rule 3.3. Candor toward the Tribunal.
(a) A lawyer shall not knowingly or recklessly: (a)(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; or (a)(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction directly adverse to the position of the client and not disclosed by opposing counsel.
(b) A lawyer shall not offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
(c) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
(d) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding . . . .
While she did not specifically refer to the following, the licensing authorities will likely investigate and decide whether their conduct also violates the following:
Rule 8.4. Misconduct.
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice . . . .
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com. Rob’s second novel, a beautifully written suspense drama that takes place in Utah, Wyoming, and Norway, dropped on November 17, 2020. Available on Amazon, Barnes and Noble, Apple Bookstore and your favorite local bookshop, this novel, The Contortionists, which Rob himself narrates for the audio version, is a psychological page-turner about a missing child in a predominantly Mormon community. I have read the novel and listened to the audio version twice. It is a literary masterpiece. The Contortionists is not, however, for the faint of heart.
**Richard J Van Wagoner is my father. His list of honors, awards and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in many traveling shows domestically and internationally. My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father's work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his artwork. The photographs of my father's art reproduced in https://medium.com/@richardvanwagoner and https://lastamendment.com are hers.