Adam Winkler: Trump’s lawyers can’t help him steal the election. Thank legal ethics.
President Donald Trump’s lie that the election was stolen has had some unfortunate success in the court of public opinion: Polling shows that more than three-quarters of his supporters believe the contest was riddled with fraud. To overturn the result, though, Trump needs to win in the court of law. A president who packed the federal courts with conservatives now depends on the judicial system to agree with his perspective and provide him a pathway to a second term despite Joe Biden’s win.
Yet Trump’s legal strategy has run aground – in no small part because of legal ethics. While lawyers are often cast as unscrupulous and immoral, they are required to follow a strict code of professional responsibility established by state bars. The famous duty of lawyers to keep a client’s confidences, for instance, comes from these ethical codes. Law students must take a course in legal ethics, the bar exam includes a section on ethical rules, and continuing-education requirements emphasize lawyers’ duties to clients and to the courts.
Two ethical rules have been fatal to Trump’s election lawsuits in state after state: the lawyer’s duty of candor to a court and the lawyer’s duty to avoid frivolous claims. The president can spew all the theories he wants, and his advocates can say whatever they like on television, but because of these two ethical duties, Trump’s lawyers can make claims before courts only if they can back them up with actual evidence.
According to the American Bar Association’s Model Rules of Professional Conduct, a lawyer is prohibited from making “a false statement of fact or law to a tribunal.” This rule is as straightforward as it sounds: Lawyers are obligated to be truthful in everything they say to a court. If they aren’t, they can lose their license to practice law. (Former Pennsylvania attorney general Kathleen Kane, for example, was disbarred after she lied under oath about leaking grand jury material about a political rival while in office.)
In a hearing over Trump’s claim that his campaign was being excluded from observing the ballot count in Philadelphia, the judge – a conservative George W. Bush appointee – asked Trump’s lawyer if campaign observers were in fact present. “There’s a nonzero number of people in the room,” the lawyer responded vaguely. The judge, irritated, said he was “asking you as a member of the bar of this court” – judge-speak for “Be honest with me right now or I’ll have your bar card.” Because of the duty of candor to the court, Trump’s lawyer had to concede that campaign observers were indeed in the room.
In Arizona, where Trump says Republican voters were instructed to use Sharpie pens that would supposedly cause their ballots to go uncounted, legal ethics required the Trump campaign’s lawyer to admit that many of the supporting affidavits by voters who alleged that they were affected were probably untrustworthy and no more than “spam.”
The duty of lawyers to avoid making frivolous claims has also hurt Trump’s efforts to use the courts to overturn the election. Lawyers are prohibited from making assertions in court or in their filings “unless there is a basis in law and fact for doing so that is not frivolous,” in the words of the ABA’s Model Rules. Lawyers have to be especially careful about this one, because judges can impose monetary sanctions against them on the spot. A whole section of the rules of federal civil proceedings specifies the duties lawyers have to ensure that the factual claims they’re making are supported by evidence and that the legal ones have a sound basis, too.
The Trump campaign’s lawyer in Arizona confessed that, again contrary to Trump’s tweets, he was “not alleging that anyone was stealing the election.” He simply didn’t have any facts to substantiate that assertion. In Michigan, campaign lawyers couldn’t show evidence that GOP observers were hindered in watching the counting in Detroit and later withdrew their federal lawsuit. This past week, Trump voters had to drop lawsuits in Georgia, Michigan, Pennsylvania and Wisconsin for similar reasons.
So far, Trump’s lawyers haven’t been sanctioned, perhaps because they are rapidly dropping their lawsuits to avoid it. More than two dozen suits filed by the president or his supporters have been withdrawn or thrown out. On one day, Nov. 13, Trump’s campaign lost or dropped nine cases. The Democratic election lawyer Marc Elias, who has been involved in opposing Trump’s litigation in several states,crowed on Twitter that the president and his allies had lost 31 times in court and won only once.
Concerns about violating ethical rules partly explain why Trump’s lawyers are deserting him. Two large law firms withdrew as counsel only days after filing lawsuits. Two new lawyers signed on, only to withdraw within days. Lawyers in high-profile cases rarely quit a client so quickly – unless they fear that the representation will violate the rules of legal ethics. Then they have no choice. Likewise, most of the establishment legal team that defended Trump during his impeachment has stayed away from the post-election litigation efforts.
The exodus has left Trump’s lawsuits in the hands of Rudy Giuliani, who until this past week hadn’t been in a courtroom in decades. Although he’s made wild accusations in news conferences about “a massive fraud” involving the Clintons, George Soros and Hugo Chávez, Giuliani acknowledged in a federal court hearing in Pennsylvania that “this is not a fraud case.” And so far, none of the strangest claims he’s made publicly has found its way into any court filings.
Trump has thrived by bending the world to his own version of reality. But in court, his lawyers are ethically obligated to be honest and pursue only meritorious claims. The president’s undemocratic effort to overturn a free and fair election is being turned aside, and we have the ethics of lawyers to thank.
Adam Winkler is the Connell professor of law at UCLA School of Law, where he teaches, among other subjects, legal ethics.