Professional responsibility: Using courts for purposes never intended

First off, let us be specific regarding the terms "legal ethics" and "professional responsibility" than customarily has been considered in the legal profession to date. It is the general area of professional responsibility within which we consider the specific ethical rules. There is a considerable segment of legal scholarship of the opinion the law schools have failed to discharge their responsibility in this two-pronged philosophy. See Ross Cranston, "Legal Ethics and Professional Responsibility," 1996. Here, we will direct our attention to the larger expanse of professional responsibility.

On Aug. 25, an amazing decision by U.S. District Court Judge Linda V. Parker (Eastern District Michigan, Southern Division) found the nine lawyers from different jurisdictions seeking to make former President Donald Trump Michigan's official 2020 presidential choice, filed this lawsuit in bad faith and for improper purpose. The ruling holds the nine lawyers (irrespective of the states in which they have been admitted to practice), who in her court advocated invalidating the 2020 presidential election results, as being guilty of a profound abuse of the judicial process. The opinion is lengthy (110 pages), and the judge not only sanctioned and encouraged disciplinary proceedings against the lawyers in her jurisdiction, but also in the several other states in which the remaining counsel were admitted to practice. She was clear in her disgust: This case was never about fraud -- it was about undermining the People's faith in our democracy and debasing the judicial process to do so, she declared.

In view of the increasing trend in the legal "profession" over the last several years of lawyers habitually using their preferred status and the courts for purposes never intended to be employed for the abuse of the legal process, this appears to be a landmark decision in professional responsibility. It stretches credulity to conclude anything other than this case will provide a big "wake-up call" for lawyers irrespective of the jurisdictions in which they practice. The case seems certain to become a classic law school teaching tool, hopefully reversing, and discouraging the motivation of an increasing number of lawyers nationwide who ignore the canons of ethics and disregard the system of justice, to instead hijack it for inappropriate motives.

Judge Parker "pulled no punches" and went right for the jugular concerning that of

which the sanctioned attorneys were guilty: "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."

Perhaps if we had more judicial officers like Judge Parker it would seem the reputation, status and potential effectiveness of the legal profession could be rehabilitated from the disrepute to which it has sunk in the eyes of the public, something I would never have contemplated when I graduated law school in 1960. She is firm in her opinion -- while members of the public are entitled to make various unsupported allegations, whether of law or fact, lawyers are prohibited from exercising their standing in our legal system in the same manner. When members of the bar overreach in such a way, they are subject to sanctions wherever they practice. The judge noted this is because: "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."

This matter came before the court because of allegations that plaintiffs' counsel did none of these things. Judge Parker made it clear she was not being asked to decide (nor did she) whether plaintiffs' case was based on allegations of fraud in the 2020 presidential election in the state of Michigan. The only question for decision was: Did plaintiffs' attorneys engage in litigation practices that are abusive and, in turn, sanctionable? The short answer is yes. Notwithstanding freedoms provided under the First Amendment, that issue was never appropriately before the court. Attorneys cannot use their special privilege under the justice system to do what, within reason, might be permitted by the ordinary citizen. Sanctions are in order when lawyers disregard professional responsibility and instead act as nonlawyers under such circumstances.

The motions for sanctions filed by defendants and intervenor-defendants were granted and the court imposed penalties pursuant to Rule 11 of the Federal Rules of Civil Procedure, 28 U.S.C. Section 1927, and its own inherent authority.

Additionally, the judge recommended the several bar associations in which each of the lawyers are members investigate them for potential suspension or disbarment, noting their involvement in the litigation showed they were unfit to practice law. Along with mandatory continued education on election law, the pro-Trump attorneys were ordered to pay all fees and costs incurred by the government defendants to defend this action.

On Aug. 31, Professor Neil H. Buchanan of the University of Florida's Levin College of Law, in a piece in Verdict, dealing with potential District of Columbia statehood, expressed the sobering thought there soon may come a time when our country's rule of law finally ends. For those who may feel our political processes have gotten out of hand as being increasingly employed for the personal benefit of those who without merit seek to manipulate our justice system, all is not lost.

Especially at the federal level, this case clearly breathes "fresh air" into the efforts by citizens to exercise fully their rights to preserve the intentions of our founding fathers, and rein in the current trend towards encouraging a "wild west" approach to the way the legal profession functions in many respects.