The period since the election has seen a destructive and unwarranted series of abusive lawsuits filed by some members of the American legal profession. While lawyers must represent their clients with determination and zeal, no lawyer may seek, on behalf of any client, to subvert democratic institutions or burden the courts with claims that the lawyer knows are frivolous. As former presidents and a former CEO of the District of Columbia Bar, which has more than 100,000 members from every state, we think that it is important to explain that it did not have to be this way, and it should not have been.
The law protects our democratic institutions and embodies our commitment to a civil society. It is through lawyers in their dual role as “officers of the court” and as advocates for specific clients that the law achieves these goals. But as one of the country’s most celebrated lawyers, Elihu Root, supposedly said a century ago: “About half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop.”
Since the election, instead of telling their client to stop, some lawyers — too many — have leveled attacks on the integrity of the electoral process, basing their assertions on unfounded allegations of “voter fraud” or “ballot tampering.” Lawyers for President Trump have filed at least three dozen lawsuits in various states, charging grave abuses of the electoral process. Their goal has been to scuttle the process for counting and certifying the vote, thereby expunging millions of votes. If any legitimate evidence to support the challenges existed, we would defend the lawyers in raising the pertinent legal issues. But in the absence of any meaningful evidence, we must condemn the abuse of the judicial system to subvert the democratic process.
Fortunately, federal and state judges, regardless of prior political affiliation, have quickly and courageously rebuffed these groundless lawsuits. But it is deeply troubling that so many lawyers and law firms have been willing to sign their names to these filings, letting themselves be used in this corrosive undermining of confidence in the democratic process. Members of the bar have an obligation to refrain from undertaking a matter for a client when the lawyer knows that the purpose of the lawsuit is purely political and lacks concrete factual support or plausible legal merit.
Sadly, the past few weeks have demonstrated serious disregard for these professional duties of lawyer-citizens. Perhaps most notorious was the lawsuit filed in Pennsylvania that tried to salvage the failing litigation campaign of the incumbent president by assembling a grab-bag of unsupported assertions about the integrity of the vote count.
In ruling against Trump on Friday, the federal appeals court — in an opinion written by a Trump appointee and joined by two other Republican-nominated judges — was unsparing in its assessment of the weakness of the claim. “Free, fair elections are the lifeblood of our democracy,” wrote Judge Stephanos Bibas. “Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”
It is no excuse that the “client” — the unsuccessful presidential candidate’s reelection committee or local political allies — wanted to assert these contentions. A lawyer may not advance such contentions in court without having genuine factual grounds for them. Politicians may make outlandish claims or invent “alternative facts.” But 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.
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, the right of the people to select their leaders. Nor is it permissible to start a lawsuit propounding the client’s thesis, simply hoping that some support for the claim may turn up. The ABA Model Rules of Professional Conduct direct lawyers to refrain from bringing a proceeding “unless there is a basis in law or fact for doing so that is not frivolous.”
Most basically, the binding rules of professional behavior declare that it is “professional misconduct” to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation” or to “engage in conduct that is prejudicial to the administration of justice.” The array of lawsuits filed in efforts to undermine the 2020 presidential election presented a veritable checklist of disregard for these professional standards.
The fact that these lawsuits were filed on behalf of the incumbent president, not private clients in a commercial dispute, makes matters even worse. Here, lawyers have willingly agreed to become the instruments of a wholesale attack on the integrity of the democratic process, which is the framework for binding together a peaceful, civil society under law. The harmful consequences of this campaign will survive long after the courts formally have dismissed the lawsuits.
Our country deserved better from members of the bar.
The authors are listed in the order of their service:
Charles R. Work
Robert L. Weinberg
Stephen J. Pollak
Marna S. Tucker
Philip Allen Lacovara
Jamie S. Gorelick
Mark H. Tuohey III
Pauline A. Schneider
Carolyn B. Lamm
Andrew H. Marks
Joan H. Strand
John W. Nields Jr.
George W. Jones Jr.
Shirley Ann Higuchi
John C. Keeney Jr.
John C. Cruden
James J. Sandman
Kim M. Keenan
Andrea C. Ferster
Esther H. Lim
Katherine A. Mazzaferri (former CEO)
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