NC professor: A lawyer’s ethical duty in the Trump era

Donald Trump never met a lawsuit he didn’t like. Perhaps it is fitting, then, that the bookends of his presidency are defined by waves of litigation – and sharp contrasts in attorney ethics and approaches to the legal profession.

Few can forget the scenes from January 2017 of lawyers across the country flooding airport terminals to protest the administration’s so-called “Muslim Ban” prohibiting immigration from seven Muslim-majority countries. Thousands of attorneys held placards offering free legal services, and within days many of these lawyers had filed – and won – lawsuits challenging the unconstitutional executive action.

Fast forward to November 2020, when lawyers are flooding courts across the country with baseless, frivolous lawsuits challenging the outcome of the presidential election. That is not a partisan statement, but a factual one dictated by the code of legal ethics governing attorney behavior. Model Rule of Professional Conduct 3.1 states that a “lawyer shall not bring or defend a proceeding, or assert . . . an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.” This statement defines Trump’s election lawsuits, almost all of which were dismissed immediately for failing to provide any evidence to substantiate claims of widespread voter fraud.

Trump’s lawyers have twisted themselves into knots trying to defend the indefensible. In one Pennsylvania lawsuit claiming Republican poll watchers were excluded from the ballot counting, Judge Paul Diamond asked Trump’s team whether “your observers [are] in the counting room.” The response? “There’s a nonzero number of people in the room.” Invoking the attorney’s ethical obligation to be honest, Judge Diamond put it another way: “I’m asking you as a member of the bar of this court. Are people representing the plaintiffs in this [counting] room?”

“Yes,” the lawyer said.

In another case, Trump’s team asked that 592 “fraudulent” ballots be tossed. Sensing the baselessness of the allegation at the hearing, Judge Richard P. Haaz asked the president’s attorney “a specific question, and I am looking for a specific answer. Are you claiming that there is any fraud in connection with these 592 ballots?”

“To my knowledge at present, no,” the attorney responded.

Having repeatedly lost in court, Trump’s lawyers have resorted to the court of public opinion to peddle the president’s misinformation. In a Thursday press conference, attorneys Rudy Guliani and Sidney Powell claimed without evidence that coordinated “Democrat voter fraud” changed the outcome of elections in Pennsylvania, Michigan, and elsewhere. When pressed for specifics, they deflected angrily and repeated their baseless claims.

And therein lies the difference between courts of law and courts of public opinion. An attorney in court cannot evade the direct questions of judges, nor can they lie without significant professional repercussions. That Trump’s lawyers are willing to breathe legitimacy into these false claims in the media is disturbing and dangerous. Filing formal lawsuits in court repeating these claims is unethical and illegal.

President Trump’s “declare crimes first, look for evidence later” approach may work in politics. But it is specifically prohibited in legal proceedings, and the willingness of some attorneys to pursue this strategy not only constitutes sanctionable conduct under ethical rules but damages the integrity of the entire profession. Growing calls to discipline these attorneys, coupled with recent withdrawals from these cases by law firms representing Trump, reflect the seriousness of these abuses of legal process.

Much has been written about the long-term impacts of Trump’s brazen attacks on democratic institutions, from overtly politicizing the Department of Justice to refusing to participate in a peaceful transfer of power. As a legal educator, I worry about the lasting damage to the rule of law, and more specifically, to those future lawyers I teach charged with promoting and protecting the rule of law. At the very least, the events of the past few weeks have provided a teaching moment on what not to do as an ethical lawyer. Here’s hoping the profession has not suffered irreparable damage by the time my students enter that profession.

Shawn E. Fields is an Assistant Professor of Law at Campbell University’s Norman Adrian Wiggins School of Law.