Risk Update

Representation, Reputation & Risk — Developments and News of Note

Today, I’ve consolidate several relevant and interesting news items and third-party commentary on unfolding election matters into an unusually a large but interesting update:

Another law firm bails out on Trump campaign” —

  • “Another law firm has moved to drop its representation of President Donald Trump’s campaign in its flurry of lawsuits challenging the results of last week’s presidential election.”
  • “Late Thursday night, Columbus-based firm Porter Wright Morris & Arthur notified a federal judge hearing a Trump-filed suit over the election tallies in Pennsylvania that the firm is seeking to pull out of the case.”
  • “Some Trump critics including Republicans affiliated with the Lincoln Project have indicated they planned to pressure the commercial clients of law firms representing the campaign to drop the firms if they continued with the court fight on behalf of the president.”
  • “‘Plaintiffs and Porter Wright have reached a mutual agreement that Plaintiffs will be best served if Porter Wright withdraws, and current co-counsel and such other counsel as Plaintiffs may choose to engage represent Plaintiffs in this case,’ the filing said.”
  • “‘Cancel Culture has finally reached the courtroom,’ said Trump campaign communications director Tim Murtaugh in a statement. ‘Leftist mobs descended upon some of the lawyers representing the President’s campaign and they buckled…The President’s team is undeterred and will move forward with rock-solid attorneys to ensure free and fair elections for all Americans.'”

Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University: “Trump’s Lawyers Are Just Doing Their Jobs” —

  • “President Donald Trump’s lawyers are under siege. The New York Times reports that mega-firm Jones Day is facing pressure from its own attorneys to withdraw from representing him in lawsuits claiming voter fraud. Piling on, the Lincoln Project plans to spend half a million dollars in a public relations campaign attacking the firm. Firms in Arizona and Pennsylvania have changed their minds about taking up the president’s cause. In four decades of teaching law, I’ve never seen anything quite like this.”
  • “So why am I frightened? Because we go down a dangerous path when we pressure lawyers to reject as clients those we revile. The representation of the unpopular has long been a core component of the integrity of the profession. The moments in our history when lawyers have lost that focus have not been happy ones.”
  • “Certainly, I do not argue that every lawyer need take on every client. Rule 6.2(1) of the Model Code of Professional Conduct is clear: ‘A lawyer ordinarily is not obliged to accept a client whose character or cause the lawyer regards as repugnant.’ True, the rule goes on to require each attorney to take on ‘a fair share of unpopular matters or indigent or unpopular clients,’ but there are plenty of ways to fulfill that mandate without representing Trump. And more important, the rule says nothing about lawyers rejecting clients whose character or cause others find repugnant.”

New York Times News: “Growing Discomfort at Law Firms Representing Trump in Election Lawsuits” —

  • “Some lawyers at Jones Day and Porter Wright, which have filed suits about the 2020 vote, said they were worried about undermining the electoral system.”
  • “Some senior lawyers at Jones Day, one of the country’s largest law firms, are worried that it is advancing arguments that lack evidence and may be helping Mr. Trump and his allies undermine the integrity of American elections, according to interviews with nine partners and associates, who spoke on the condition of anonymity to protect their jobs.”
  • “At another large firm, Porter Wright Morris & Arthur, based in Columbus, Ohio, lawyers have held internal meetings to voice similar concerns about their firm’s election-related work for Mr. Trump and the Republican Party, according to people at the firm. At least one lawyer quit in protest.”

Two other lawyers weigh in: “No Self-Respecting Lawyer Should Touch Trump’s Election-Fraud Claims” —

  • “The president may not have to worry about keeping a job after January 20, 2021, but the attorneys doing his bidding at the moment certainly do.”
  • “Some of the lawyers at the firms handling the litigation work for President Donald Trump’s campaign or related Republican Party organizations are now raising concerns internally about the legitimacy and purpose of the legal claims they are currently being asked to advance.”
  • “These concerns have merit: Lawyers have ongoing obligations to adhere to the ethical requirements of the state bars through which they are licensed, as well as the relevant rules of the court(s) before which they are practicing.”
  • “Rule 3.1 of the American Bar Association’s Model Rules of Professional Conduct—upon which most state bars rely at least in part—stipulates that a lawyer shall not bring an action unless a basis exists in law and fact for doing so. This rule implies that lawyers must do due diligence to inform themselves of the facts of the case and reasonably determine that a good-faith argument can be made in defense of the client’s legal claim.”
  • “Rule 11(b) of the Federal Rules of Civil Procedure—many of which are designed to serve as “gatekeepers” against frivolous lawsuits—requires lawyers to ensure that their arguments are not frivolous, and that factual contentions either have or are reasonably likely to have evidentiary support. Although the courts do not often exercise their discretion to enforce it, Rule 11(c) provides judges with the authority to impose sanctions against lawyers who have violated Rule 11(b).”
  • “These due-diligence obligations are of particular importance in the cases Trump and his team are now litigating. Rule 9(b) of the Federal Rules identifies certain “special matters” that must be pled with greater specificity and are thus subject to what courts call ‘heightened scrutiny.’ One of these matters is fraud: “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake” (italics added). More than one court has held that the “heightened scrutiny” Rule 9(b) requires also applies to claims of election fraud.”

Washington Post Editorial: “Yes, going after Trump’s law firms is fair game” —

  • “As a general rule, we don’t want to discourage attorneys from representing unpopular clients. But facts matter, and there are some important distinctions to draw when deciding whether public criticism of attorneys is out of bounds.”
  • “The first distinction is criminal cases vs. civil litigation. An individual being criminally prosecuted has a constitutional right to legal representation. Defending the accused can be an ethical and professional obligation for a lawyer. A defense lawyer should not be shamed for representing an unpopular client confronting the awesome power of a government that could deprive him of his liberty or even his life. Conservatives have criticized attorneys defending terrorism suspects; liberals have criticized attorneys representing sexual predators such as Jeffrey Epstein. Both were wrong. But that principle does not come into play here. In the current situation, Trump is not being criminally investigated or prosecuted.”
  • “The Trump campaign and Republican groups in these cases are playing offense, not defense. They have filed lawsuits that appear to contain baseless allegations of fraud and that seek to have lawful votes rejected. For the attorneys, agreeing to bring such cases represents a choice, not a professional obligation. It’s fair for the public to hold accountable any lawyers who make that choice.”
  • “Clearly feeling the heat, Jones Day issued a statement saying it is not involved in suits alleging voter fraud or contesting the results of the election. The firm represents Pennsylvania Republicans in a Supreme Court case involving a court-ordered extension of the deadline for mail-in ballots. This claim has more legal basis than some of the other election-related litigation. Yet it is still a lawsuit seeking to reject thousands of votes cast in reliance on a ruling that sought to make voting easier during the pandemic. And although we now know there were not enough such votes to change the result in Pennsylvania, at the time the suit was filed it had the potential to affect the outcome of the election by disenfranchising thousands of voters.”
  • “A court may impose sanctions against a lawyer and firm for bringing a frivolous suit. But there’s no guarantee that will happen, and no reason that needs to be the only possible consequence for baseless or harmful lawsuits. Firm clients may choose to take their legal business elsewhere. Law students and lawyers looking for jobs may bypass the firms or may press them about this work when interviewing. Other lawyers already at the firms may choose to leave, as one Porter Wright attorney reportedly has already done. And members of the public may voice their disapproval, as many are doing now.”
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