Legal Ethics for New Attorneys: Trump’s Attorneys’ Fiasco

Time for a Review of an Attorney’s Ethical Duties to Tell the Truth, Show Candor Toward the Tribunal, Provide Counsel Only on Legal or Just Matters, and File Only Meritorious Claims and Contentions

As judges around the country weigh how to hold accountable the lawyers who abused the courts to advance former President Trump’s frivolous challenges to the 2020 election, two recent cases are particularly instructive for attorneys who wish to comply with their ethical responsibilities. These cases also present a good opportunity to review various State Bar Act provisions and the California Rules of Profession Conduct [CRPC] that are potentially implicated by these recent developments.

In the first case, on June 25, 2021, a panel of five judges of the Appellate Division, First Judicial Department in New York, suspended the law license of Rudolph W. Giuliani, the former New York mayor and U.S. Attorney for Manhattan, determining that Giuliani was “not fit to continue practicing law.” The court found:

“…uncontroverted evidence that [Giuliani] communicated demonstrably false and misleading statements to courts, lawmakers, and the public at large in his capacity as lawyer for former President Donald J. Trump and the Trump campaign in connection with Trump’s failed effort at reelection in 2020.”

In the Matter of Rudolph W. Giuliani [Giuliani], Supreme Court of the State of New York Appellate Division, First Judicial Department, Case No. 2021-00506, pg. 2; available at: https://www.courthousenews.com/wp-content/uploads/2021/06/Giuliani-law.pdf.

The disciplinary panel rejected Giuliani’s argument that the investigation into his conduct violated his First Amendment right to free speech, stating:

“It is long recognized that ‘speech by an attorney is subject to greater regulation than speech by others,’ (Gentile v State Bar of Nevada, 501 US 1030, 1051 [1991]). Unlike lay persons, an attorney is ‘a professional trained in the art of persuasion,’ (Ohralik v Ohio State Bar Assn., 436 US 447, 465 [1978]). As officers of the court, attorneys are ‘an intimate and trusted and essential part of the machinery of justice,’ (Gentile v State Bar of Nevada, 501 US at 1072. In other words, they are perceived by the public to be in a position of knowledge, and therefore, ‘a crucial source of information and opinion,’ (Gentile v State Bar of Nevada, 501 U.S. at 1056).”

Id. at 6

Among Giuliani’s many ethical violations were violations of the New York counterparts to CPRC Rule 3.3(a) (false statement to tribunal); Rule 4.1 (false statement to a third person); and Rule 8.4(c) (dishonest conduct). For example, the suspension order says Giuliani fabricated claims about dead people voting in Philadelphia, at times claiming the number of fraudulent votes there was more than 8,000 while on other occasions putting that number at 30,000 — without showing proof that either figure was true (Id. at 15-16).

Giuliani claimed Joe Frazier, the late heavyweight boxing champion who died in 2011, “is still voting here,” without evidence, during his push to overturn election results in Pennsylvania. The order states that although Giuliani claimed to have made the false statements unknowingly, he failed to offer “a scintilla of evidence for any of the varying and wildly inconsistent numbers of dead people he factually represented voted in Philadelphia.” (Id. at 15.)

In the second case, on August 25, 2021, U.S. District Court Judge Linda V. Parker filed a 110-paged decision in King v Whitmer (E.D., Mich. 2021) (Case 2:20-cv-13134-LVP-RSW ECF No. 172, PageID.6890) (Available at: https://www.michigan.gov/documents/ag/172_opinion__order_King_733786_7.pdff.) The decision begins:

“This lawsuit represents a historic and profound abuse of the judicial process. It is one thing to take on the charge of vindicating rights associated with an allegedly fraudulent election. It is another to take on the charge of deceiving a federal court and the American people into believing that rights were infringed, without regard to whether any laws or rights were in fact violated. This is what happened here.”

King v Whitmer, at 1, emphasis added.

The Court found the plaintiff’s attorneys filed the suit in “bad faith and for an improper purpose” in violation of Michigan’s Rules of Conduct 3.1 and 3.3 (which correspond to CPRC Rule 3.1 and 3.3) based upon “fantastical claims and conspiracy theories.” (King v. Whitmer, p. 103 and fn. 82.) The Court stated:

“America’s civil litigation system affords individuals the privilege to file a lawsuit to allege a violation of law. Individuals, however, must litigate within the established parameters for filing a claim. Such parameters are set forth in statutes, rules of civil procedure, local court rules, and professional rules of responsibility and ethics. Every attorney who files a claim on behalf of a client is charged with the obligation to know these statutes and rules, as well as the law allegedly violated.

“Specifically, attorneys have an obligation to the judiciary, their profession, and the public (i) to conduct some degree of due diligence before presenting allegations as truth; (ii) to advance only tenable claims; and (iii) to proceed with a lawsuit in good faith and based on a proper purpose. Attorneys also have an obligation to dismiss a lawsuit when it becomes clear that the requested relief is unavailable.”

Id. at 2.

The Court also sanctioned nine attorneys:

“[T]o deter the filing of future frivolous lawsuits designed primarily to spread the narrative that our election processes are rigged and our democratic institutions cannot be trusted. Notably, many people have latched on to this narrative, citing as proof counsel’s submissions in this case. The narrative may have originated or been repeated by Former President Trump and it may be one that “many Americans” share … however, that neither renders it true nor justifies counsel’s exploitation of the courts to further spread it.”

Id. at 103-104.

The Court ordered all the attorneys to complete twelve hours of continuing education in the subjects of pleading standards and election law, and referred them for investigation and possible suspension or disbarment to the appropriate disciplinary authorities in every state bar and federal court in which each attorney was admitted (Id. at 108.).

The King v. Whitmer decision is a helpful to understanding an attorney’s role in the administration of justice and the professional responsibilities, statutes, and rules that establish the parameters within which an attorney must comply.

In reviewing California’s Rules of Professional Conduct and the State Bar Act, we begin in noting that attorneys are officers of the court and owe the court a duty of candor. (In re Reno (2012) 55 Cal.4th 428, 510; Roche v. Hyde (2020) 51 Cal.App.5th 757, 817.” Thus, California Rule of Professional Conduct [CRPC] Rule 3.3, subd. (a)(1), “Candor Toward the Tribunal” provides, in part:

“(a) A lawyer shall not: (1) knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; …”

Business and Professions Code section 6068, subdivisions (c) and (d) provide, in part, that an attorney’s duty is:

“(c) [t]o counsel or maintain those actions, proceeding, or defenses only as appear to him or her legal or just …

(d) [t]o employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never seek to mislead the judge or any judicial office by an artifice or false statement of fact or law.”

See Levine v. Berschneider (2020) 56 Cal.App.5th 916, at 921(affirmed sanctions against attorney for lack of candor with the trial court about the fact that settlement funds had been paid); Jackson v. State Bar of California (1979) 23 Cal.3d 509,513 (“An attorney has an unqualified duty to refrain from acts which mislead the court. (Bus. & Prof. Code, §§ 6068, 6128, subd. (a).) … The representation to a court of facts known to be false is presumed intentional and is a violation of the attorney’s duties as an officer of the court. [Bus. & Prof. Code] §§ 6068, 6103.”

Thus, while attorneys must diligently represent their clients’ interests, every attorney also has the duty to decline to file a pleading which advances meritless and frivolous positions. (See Los Angeles County Bar Assn. Form. Opn. 464 (1993) page 7; Cal. Code of Civil Procedure §128.5 and Rule 11, Federal Rules of Civil Procedure (providing for payment of expenses and sanctions for a party’s bad faith actions or frivolous tactics; and Cal. Code of Civil Procedure §128.7 (sanctions for the filing or advocacy of groundless claims in signed pleadings and other papers).)

Presenting a legally unsupportable claim may also subject the lawyer (and client) to tort liability if it is shown the lawyer acted “maliciously” and “without probable cause” and the proceeding terminated in favor of the opposing party. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 C3d 863, 871-872.)

Attorneys also have the ethical obligation not to “encourage the commencement or the continuation of an action or proceeding from any corrupt motive or passion or interest.” (Bus. & Prof. Code §6068(g)); See Canatella v. Stovitz (N.D. Cal. 2005) 365 F. Supp. 2d 1064, 1078-1079 (upholding the constitutionality of Bus. & Prof. Code §6068(c) [“legal and just” are not unduly vague], §6068(g)[not unduly overbroad or vague] §6106, and former CPRC Rule 3-200 (now rule 3.1) [finding that the term “harassing or maliciously injuring” is not unduly vague].)

Under CRPC Rule 3.1(a) a lawyer shall not:

“(1) bring or continue an action, conduct a defense, assert a position in litigation, or take an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person; or

(2) present a claim or defense in litigation that it not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of the existing law.”

See Tuft, Peck & Mohr, Cal. Prac. Guide: Professional Responsibility (The Rutter Group 2020) ¶¶8:291-293, 8:298.1

In Sorensen v. State Bar (1991) 52 Cal.3d 1036, at 1042-1043, construing a former version of CRPC Rule 3.1(a)(1), an attorney filed a complaint for fraud against a court reporter over a disputed bill for a deposition transcript. The attorney sought $14,000 in punitive damages to redress a $45 billing dispute for which his firm had suffered no damages.

The Court found the lawyer violated Business and Professions Code section 6068, subdivision (c), by breaching his duty to “counsel or maintain such actions … only as appear to him or her legal or just,” and subdivision (g), by breaching his duty not to encourage either the commencement or the continuance of an action or proceeding from any corrupt motive of passion or interest. (See also Matter of Wyshak (Review Dept. 1999) 4 Cal. State Bar Ct. Rptr. 70, 78, 81 (Attorney prepared a pleading alleging opposing party had sexually harassed the attorney’s client, knowing the claim was false, in order to induce the opposing party to drop an unlawful detainer action against the client, thereby violating Bus. & Prof. Code §6068(g); Matter of Scott (Review Dept. 2002) 4 Cal. State Bar Ct. Rptr. 446, 454, 457-458; San Diego Bar Assn. Form. Opn. 1995-5 (Construing former rules 3-200, 3-700 (now Rule 1.16) and Bus. & Prof. Code §6068(c).)

CRPC Rule 4.1(a), “Truthfulness in Statements to Others,” provides, in part:

“In the course of representing a client a lawyer shall not knowingly (a) make a false statement of material fact or law to a third person;”

CRPC Rule 8.4 mandates:

“A lawyer or law firm shall not: … (c) engage in conduct involving dishonesty, fraud, deceit or intentional misrepresentation; … or (d) engage conduct that is prejudicial to the administration of justice.”

A violation of Rule 8.4 can occur when a lawyer is acting in propria persona or when a lawyer is not practicing law or acting in a professional capacity. (Comment [1] CRPC Rule 8.4.)

Finally, a lawyer may be disciplined under Business and Professions Code section 6106, “Moral Turpitude, Dishonesty or Corruption Irrespective of Criminal Conviction,” for acts involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of their relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not.

As observed by Supreme Court Justice Potter Stewart:

“A lawyer belongs to a profession with inherited standards of propriety and honor, which experience has shown necessary in a calling dedicated to the accomplishment of justice. He [or she] who would follow that calling must conform to those standards.” (In re Sawyer (1959) 360 U.S. 622, 646, concurring opinion.)

*No portion of this article is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.*