Inside the effort to disbar attorneys who backed bogus election lawsuits

By CNN Newsource

Published March 10, 2022 2:08 am

By Tierney Sneed, CNN

Lawyers who backed former President Donald Trump’s bogus election reversal gambits are facing fresh opposition for their involvement — in the form of a flashy new campaign, launched this week by fellow members of the legal community, aimed at potentially disbarring the Trump-aligned attorneys.

Those who have sought disciplinary responses for Trump’s legal allies say the post-election conduct crossed ethical lines into the realm of professional misconduct — and that the tactics were well outside the normal bounds of legal challenges to election procedures.

Already several ex-Trump lawyers, including Rudy Giuliani and John Eastman, have found themselves subject to state bar reviews.

Disciplinary proceedings for ex-Trump attorney Sidney Powell are set to unfold in a state court in Texas, where she is licensed, after a March 1 petition from the Texas Bar’s disciplinary commission asked the court to find her in violation of the professional code for attorneys in the state.

The threat of professional recourse for Trump’s inner legal circle — and others more tangentially connected to various election subversion schemes — has since been escalated with a fresh blitz of ethics complaints filed Monday by a new bipartisan group led by prominent lawyers and a former US senator.

The group, the 65 Project, is seeking penalties for the individual attorneys whose conduct allegedly violated legal professional code, and it is trying to discourage lawyers in the future from participating in ethically dubious election reversal plots.

“Creating a system of deterrence requires that people know these complaints have been filed,” the 65 Project’s managing director, Michael Teter, told CNN. “The activities these lawyers engaged in was beyond the pale, and they are unprecedented in nature and scope.”

But the 65 Project’s tactics are attracting skepticism among scholars of legal ethics and others in the legal community who question an approach that so publicly wields attorney disciplinary procedures against Trump allies. In most states, bar investigations into attorney misconduct allegations unfold in secret until the claims are determined to have reached a threshold of merit.

It’s “problematic,” said Fordham Law School professor Bruce Green, that the group is “accusing lawyers of misconduct in a very public way,” with news releases and a media rollout, before claims have been reviewed and validated by disciplinary boards.

“That’s basically designed to embarrass these lawyers, and that may have the effect of discouraging lawyers from engaging in politically involved work, even if they’re playing by the rules, because a group like this can misconstrue what they’re doing and embarrass them,” Green, who directs the university’s Louis Stein Center for Law and Ethics, told CNN.

The Trump allies who have been targeted by ethics complaints filed by the group say it’s a politically motivated endeavor meant to chill lawyers from representing clients with political views it doesn’t like.

The 65 Project notes it has on its advisory board prominent legal ethics experts and lawyers with credentials on the right. And its defenders say attorney misconduct from the effort to challenge the 2020 election should be met with appropriate professional recourse, regardless of the political context from which it arises.

“Using the disciplinary process in the context of the 2020 election campaign and thereafter is unusual,” said Stephen Gillers, a New York University School of Law professor who has written extensively about legal ethics and rules. “But it’s unusual only because it doesn’t usually occur that this sort of conduct happens.”

Ethics complaints targeting different aspects of the election reversal plot

Among those targeted in the 65 Project’s initial round of complaints are former Trump attorneys Cleta Mitchell, Jenna Ellis, Boris Epshteyn and Joseph diGenova. Ellis said in a statement to CNN that she was not “intimidated by this dirty political maneuver to undermine the legal profession.”

“The state bars will see through this thinly veiled tactic to foment a chilling effect upon lawyers from doing our job and zealously representing clients that are political and even controversial,” she said. “Democrats don’t have to agree with President Trump’s opinions and claims, but that is not a basis upon which to sanction his lawyers.”

Epshteyn declined to comment on the new complaint. Mitchell and diGenova did not respond to CNN’s inquiries.

The 65 Project additionally filed complaints against attorneys who allegedly participated in a scheme to put forward fraudulent Trump electors from battleground states that elected President Joe Biden, including in Georgia and Wisconsin.

Also facing complaints from the group is a lawyer who has been charged in the Justice Department’s January 6 investigation for allegedly breaching the Capitol. The defendant, William Calhoun, has pleaded not guilty in the criminal case. He said in an email to CNN about the 65 Project’s complaint that he did not “commit any act involving moral turpitude, nor did I do violence against any person or property, and did not incite, encourage or participate in any violence of any kind whatsoever.”

Texas attorney Paul Davis was targeted with a complaint for lawsuits he had filed against several lawmakers and other officials that a court had deemed of a “fantastic and outright nonsensical nature” for claims about 2020 election-rigging.

“The only reason these Democrat lawyers are attempting to disbar me … is because they know the 2020 election had serious lapses in integrity that they wish to further exploit in the future. So, they must neutralize anyone who might possibly stand in their way,” Davis said in an email to CNN.

The group — which includes on its advisory board former Democratic Sen. Tom Daschle of South Dakota and Roberta Ramo, a former president of the American Bar Association — says some of the conduct the group has identified could warrant disbarment, while other attorneys may be appropriately punished with lesser penalties, like reprimands or suspensions.

The 65 Project’s name is a reference to its count of lawsuits that were filed seeking to overturn the election. The group is sifting through a list of 111 lawyers who signed on to legal pleadings, though Teter acknowledged that only some of them may attract requests for disciplinary proceedings.

“There are some that probably are not deserving of an ethical complaint, that they were engaged in an honest attempt to litigate a small matter or to make sure that some segment of absentee ballots were appropriately counted, and that’s legitimate and we certainly won’t be targeting them,” Teter said.

Disciplinary reviews already underway

The risk that those attorneys face for professional penalties — up to and including disbarment — depends on the specifics of their conduct, according to ethics experts, and whether the behavior violated the professional codes of the state bars with which they are licensed

Even before the launch of the 65 Project, the threat was looming that some attorneys could face professional consequences for their participation in Trump’s election reversal effort. Some of the targets of the latest complaints say previous requests filed with their state boards for disciplinary action have already been dismissed.

But other efforts have gained traction. Giuliani’s law license in New York was suspended last year after disciplinary proceedings that culminated with a court concluding that he had “communicated demonstrably false and misleading statements to courts, lawmakers and the public.”

A federal judge in Michigan, meanwhile, has issued sanctions, including referrals to the relevant disciplinary boards, for Sidney Powell, Lin Wood and other Trump-tied attorneys for election-related litigation the judge found to be “frivolous” and “abusive.” The attorneys are challenging the judge’s order on appeal.

In California, a state bar investigation that’s been underway since September is looking at Eastman, the conservative attorney who tried unsuccessfully to convince then-Vice President Mike Pence that he could disrupt Congress’ certification vote.

Gillers argued that, if anything, state bar disciplinary boards will be even more diligent in ensuring that the election-related “allegations have a factual basis and are not simply an example of spite.”

“Even if a decision to file a complaint has a political motivation in part, nonetheless the conduct may warrant discipline,” Gillers said.

The recent petition filed by the State Bar of Texas’ Commission for Lawyer Discipline alleged that Powell had violated several of the Texas Disciplinary Rules of Professional Conduct, including rules barring false statements to a tribunal, the use of evidence known to be false and conduct involving “dishonesty, fraud, deceit or misrepresentation.”

“Respondent had no reasonable basis to believe the lawsuits she filed were not frivolous,” the commission’s petition said, referring to election-related litigation had Powell filed in Arizona, Georgia, Michigan and Wisconsin.

The petition said complaints filed by several people, including Michigan state officials and an attorney in Arizona, had initiated the review.

Claire Reynolds, a spokesperson for the Texas State Bar, declined to comment on the specifics of Powell’s case. But she said that, generally speaking for these proceedings, the respondent can seek whether to put the case before a judge or jury. The proceedings will then move forward like typical civil litigation, with discovery, motions and eventually a hearing. A determination will be made whether there was professional misconduct, what rules it violated and the appropriate punishment.

Powell did not respond to CNN’s inquiry about the petition.

CNN’s Marshall Cohen and Katelyn Polantz contributed to this report.

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