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Donald Trump doesn’t have a real legal team. With only a handful of exceptions, all his presidency has ever had is a propaganda ministry whose members dress up as lawyers. I’ve been writing for quite some time about how Trump’s team of liars getting to call themselves lawyers cheapens the value of a law license and stains the entire legal profession.
That line of thinking has been catching on with far more respected members of the legal community than myself now that Trump has been filing baseless lawsuit after baseless lawsuit attacking the very idea of democracy. Over the last couple weeks, the nonpartisan group Lawyers Defending American Democracy has been gathering signatures from current and former members of the bar on an open letter. This letter urges local bar associations to condemn the Trump team’s abuse of the legal system in undermining democracy, and requests that legal disciplinary authorities investigate members of the Trump legal team. As I write this, the open letter has garnered more than 3,500 signatures, many of them from former leaders of attorney disciplinary bodies. A number of retired federal judges and state Supreme Court justices, as well as past ABA and state bar association presidents, have also signed on.
I’m a little disappointed with the number of “former,” “past,” and “retired” qualifiers attached to the names on the list at this stage, but I totally get people who are still practicing being a little reluctant. I’m still practicing, and I routinely cause unpleasant problems for myself with the frequently controversial content of this very column. But some things are just more important than trying to avoid offending anyone, like saving representative democracy.
There’s also a general reluctance among lawyers about trying to get other lawyers in trouble with state Boards of Professional Responsibility. It’s in bad taste to squeal on another lawyer, unless you really have to. PR boards rarely take any serious action against lawyers within their jurisdictions anyway, except for stealing client funds, which seems to be perhaps the only truly unforgivable sin for lawyers. But isn’t using your law license to undermine millions of people’s faith in democracy by filing scores of frivolous lawsuits at least as bad as one-off fraud?
The Lawyers Defending American Democracy letter focuses on ABA Model Rules 4.1(a) and 8.4(c), which target attorney dishonesty and deceit both in and out of court. The letter also mentions Rule 3.1 though, which seems to me to be even more applicable:
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 … .
I added the emphasis there, because Trump’s election lawsuits have been found repeatedly, by judges across the political spectrum, to lack any evidence. The people who actually show up in court for these bogus election lawsuits are far more careful with their words than Rudy Giuliani freewheeling at whatever latest embarrassment of a press conference he somehow still has the gall to show his face at. But even if a lawyer is not lying right to a judge’s face, being willing to file fact-free lawsuits in the first place is immensely problematic. If one lawsuit gets thrown out, two, maybe, you could still go into court with a straight face on the next one and say you were filing (and declining to withdraw what you’d previously filed) in good faith. But by the time the 40th lawsuit has been thrown out, with basically the same meritless allegations as the first 39? People who would put their names on such garbage should not dare to call themselves lawyers.
Commenting on the Lawyers Defending American Democracy open letter to Yahoo News, Harvard law professor Laurence Tribe said:
I would like my right to practice law to mean something. And if you can just use your law license to fling bullshit around, if you can use your law license to take up the time of the court, consume their resources, and undermine the credibility of the legal profession on which the rule of law largely depends in this country — then that’s a terrible thing.
This is a self-regulating profession. It is up to us to hold people accountable when they profane the credentials we all share. The lawyers who filed dozens of frivolous election lawsuits, as political theater for a man who lives in an alternate universe devoid of facts, are debasing the law licenses we all worked so hard to obtain. These lawyers need to be stopped, and made an example of.
Jonathan Wolf is a litigation associate at a midsize, full-service Minnesota firm. He also teaches as an adjunct writing professor at Mitchell Hamline School of Law, has written for a wide variety of publications, and makes it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.