A lawyer's responsibilities - Giuliani, et al. fail and fail again.

 

Judge Matthew Brann, Harrisburg, PA

A Lawyer’s Responsibilities

We lawyers are responsible.  That is our stock in trade.  The Rules of Professional Conduct command that while we act with zeal for our clients, we are officers of the legal system, and public citizens having special responsibility for the quality of justice.

This posed a special challenge for lawyers for a President who to this day declares the election was a “rigged”.  And “a total fraud”.  He sent lawyers to courts, state and federal, to urge that votes cast be tossed.   While some cried “fraud,” at the microphone, in court even Rudy Giuliani - as loyal an advocate as one could imagine - had no choice but to admit the lack of fraud allegations.  Nonetheless the effort to void millions of votes cast in Philadelphia and Pittsburgh continued.

This was too much for the judges in our neighboring state to bear.  In Harrisburg District Judge Matthew Brann, an Obama nominee, past Republican state official, sponsored by Senator Pat Toomey declared in his action denying leave to file a third version of the Trump campaign’s complaint:

...this Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence. In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state. Our people, laws, and institutions demand more.

While the President’s campaign charged unfair in press conferences, in court they offered no proof  of inequity. Prestigious law firms initiated some of the actions only to withdraw. Their successors embarrassed themselves by advocacy without evidence.  When the Pennsylvania case reached the Third Circuit as Thanksgiving approached, a panel of three judges - Stephano Bibas (a Trump appointee), Michael Chagares (a George W. Bush nominee), and D. Brooks Smith (a Reagan appointee) drew the duty of reviewing Brann’s decision.  Judge Bibas writing for the panel affirmed, declaring “Voters, not lawyers, choose the President. Ballots, not briefs, decide elections.” 

We fear not the courts which have so far responded responsibly to these challenges.  What we fear is that lawyers, echoing the President’s attacks on our legal and electoral system, have failed in their duties as public citizens.  Reckless and factually groundless arguments disparaging the legitimacy of votes cast in cities like Philadelphia and Pittsburgh recklessly threaten the public confidence at the foundation of our democracy with its so far nearly unblemished history of peaceful transitions between administrations. 

Though unsuccessful in court, they succeeded in fostering cynicism among Trump supporters as to the validity of the election.  This despite the certifications of both election officials and federal intelligence officials that the results were untainted by fraud. 

If there is an article of faith that best characterizes what Americans see in the Constitution it is in the First Amendment which begins “ Congress shall make no law...abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The right to go to court to petition for redress is however, not unlimited - particularly if a lawyer “makes a statement...in reckless disregard as to its truth concerning...the integrity of an “adjudicatory officer or public legal officer”.  RPC 8.2   The Secretaries of State, and others charged by law with verifying the integrity of the ballot are such officers.  Though these are not the facts contemplated by the rule's drafters, the shoe fits.  

Without passing on the facts regarding any particular lawyer or lawyers, we can say that the results in our neighbor Pennsylvania demands that the appropriate disciplinary authorities in the Commonwealth carefully examine the facts and if warranted, proceed with disciplinary action.

- GWC

Chris Dodd: ‘The Lessons of Nuremberg Must Be Continually Relearned’ - The New York Times

The former Senator remembers the role his father Senator Thomas Dodd played as a prosecutor at the Nuremberg war crimes trial.  We cannot remain silent because we cannot permit a repeat.

Opinion | Chris Dodd: ‘The Lessons of Nuremberg Must Be Continually Relearned’ - The New York Times

Election cybersecurity director Chris Krebs debunks fraud claims // Sixty Minutes

 Fired for speaking truth to power, Department of Homeland Security election cybersecurity director Chris Krebs debunks Trump claims of electoral fraud.

“We can go on and on with all the farcical claims alleging interference in the 2020 election, but the proof is in the ballots. The recounts are consistent with the initial count,” says Krebs. “The American people should have 100% confidence in their vote.” https://t.co/SBqu3FlK6S pic.twitter.com/5ZMHcnLGYa

— 60 Minutes (@60Minutes) November 30, 2020

Tribe, Dorf: Supreme Court puts religious rights over public health amid COVID-19//USA Today

"Though religious gatherings face greater restrictions than less risky activities like shopping, they are actually treated more favorably than comparably risky secular activities, such as public lectures, concerts and theatrical performances — as the trial judge in the Roman Catholic Diocese case observed. For the Supreme Court’s new and extremely conservative majority, it seems, failure to sufficiently discriminate in favor of religion counts as discrimination against religion."

Supreme Court puts religious rights over public health amid COVID-19 USA Today

Laurence H. Tribe and Michael C. Dorf

Opinion contributors

America may be back, as Joe Biden says, but at the Supreme Court, with its extremely conservative new majority, America is increasingly unrecognizable.

Balancing public health against the right to free exercise of religion poses a difficult challenge amid the COVID-19 pandemic. Accordingly, when cases from California and Nevada reached the Supreme Court earlier this year, the justices deferred to the judgment of their governors, who are, after all, accountable to the people.

But those cases were decided by narrow 5-4 margins before Justice Ruth Bader Ginsburg died in September. The court changed its tune late Wednesday night, when her replacement — Amy Coney Barrett — and the four earlier dissenters formed a new 5-4 conservative majority that invalidated restrictions on worship services in hot zones designated by New York Gov. Andrew Cuomo.

The ruling in Roman Catholic Diocese of Brooklyn v. Cuomo, brought by Catholic and Orthodox Jewish congregations, was especially notable because it was unnecessary. As Chief Justice John Roberts explained in his dissent, by the time the court ruled, the New York houses of worship were no longer “subject to any fixed numerical restrictions.”

The opinion, then, did nothing more than admonish New York to stop doing something it had already stopped doing. Even if the case wasn’t technically moot, there was no reason for the highest court in the land to intervene, without an oral argument or deliberation, to grant extraordinary relief.

The Roman Catholic Diocese ruling is also far-reaching in its substance. The unsigned majority opinion decries what it deems discrimination against religion because worship services were subject to capacity limits while some essential business were not. Likewise, Justice Neil Gorsuch complains in a concurrence that under some circumstances, New Yorkers in a hot zone were permitted to crowd into a liquor store or a bike shop but not a church, synagogue or mosque. Justice Brett Kavanaugh registers the same complaint about grocery stores and pet shops.

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Trump: This election was rigged, a total fraud

This election was over. I got calls from big people, Congratulations, Sir you just won the election.

Then there were massive dumps, Michigan, Pennsylvania..

Maybe it was the Department of Justice, maybe it was the FBI

Judges just don't want to get involved.

Maria Bartiromo's facial expressions as Trump pushes obscene lies about election fraud are priceless pic.twitter.com/xdt5aflm2W

— Aaron Rupar (@atrupar) November 29, 2020

Trump whines to Maria Bartiromo about the “massive dumps” he says cost him the election pic.twitter.com/oX2RPPOwbi

— Aaron Rupar (@atrupar) November 29, 2020

Sanction GOP election lawyers?

 I am scarcely incognizant of the importance of protecting lawyers who represent the unpopular.  That provides no ground on which to stand regarding the appropriateness of disciplinary action against Trump lawyers who pursued frivolous claims which in today's environment of mistrust will further undermine confidence in our system of justice and democratic processes.  We are, as the ABA Model Rules state in the Preamble [1] "officer(s) of the legal system" as well as "public citizens having special responsibility for the quality of justice".

Judges do not ordinarily take disciplinary action sua sponte.  Federal Rule 11 Sanctions contemplates demand and motion by an affected party.  In the Pennsylvania cases Trump lawyers have been repeatedly found to have groundlessly sought to undermine the vote.  Both the elected Secretary of State, the Governor and the Biden campaign have electoral and political considerations that the courts do not.  Nor do we.

I went to Rutgers Law School to work on the Chicago 7 appeal.  I began work on the first day of my first semester.  My wife Margo Anderson soon became the manager of the huge effort.  The convictions of conspiracy to cross state lines to incite a riot were reversed.  Morton Stavis, a co-founder of the Center for Constitutional Rights,  led the appeals of the contempt convictions of  defendants Bobby Seale, Dave Dellinger, Tom Hayden, Abbie Hoffman, and Jerry Rubin.  The U.S. abandoned those claims when the Supreme Court in Mayberry ruled that the contempts should have been heard by a judge other than the trial judge Julius Hoffman.

But the U.S. said that the lawyers found to have been in contempt stood on different ground.  But the 7th Circuit in In re Dellinger held that Bill Kunstler and Leonard Weinglass too should have been tried before a different judge and remanded. 461 F. 2d 389 

[William Kunstler - one of the great lawyers of his generation - was on two other occasions cited for contempt. He denounced the trial judge in the Central Park Jogger case Thomas Galligan, was held in contempt, and faced jail for refusal to pay a $250 fine.  His lawyer Morton Stavis received an anonymous contribution and paid the fine, removing Kunstler from jeopardy.]

I have had other occasion to be concerned with unfair action regarding members of the bar.  I was amicus for my Rutgers classmate and friend Lennox Hinds.  He represented Joanne Chesimard in a civil action regarding her conditions of confinement in the basement of the Middlesex court complex.  When the trial judge took no action as prosecutors peremptorily struck Black venire members, Hinds said that he feared a "kangaroo court".  The Middlesex County Ethics Committee took action.  Stavis moved to enjoin the proceedings, was backed by the Third Circuit in Garden State Bar, the Supreme Court granted cert and remanded because the New Jersey Supreme Court changed its disciplinary procedures to provide a form where constitutional rights claims could be heard.  

For several years I represented a builder - Abraham Isserman.  He was one of several trial attorneys for the Communist Party leaders in the Smith Act Foley Square trials.  He and other lawyers were held in contempt by the trial judge for allegedly obstructive tactics.  The Supreme Court affirmed, in an opinion by Robert Jackson.  Hugo Black, Felix Frankfurter and William O. Douglas dissented.  Suspended for two years by the court on motion by the Association of the Bar of the City of New York and the New York County Lawyers Association, the matter reached his home jurisdiction.  The New Jersey Supreme Court disbarred him.  At that point he was a lawyer licenced to appear only before the United States Supreme Court.  His career in ruins he went into the home construction business. 

So in my view the nub of it is neither to stand up for lawyers who defend the unpopular, nor stand by while factually and legally groundless theories are employed in court attempts on behalf of a defeated President to discredit his opponent, a successor with whom he is obligated to cooperate as the reins are peaceably passed.  Lawyers have special duties under RPC 8.2 regarding "Judicial and Legal Officials" - not to act "with reckless disregard" regarding the "integrity" of a judge or "public legal officer" or a "candidate for election to...legal office".

- GWC

Opinion | Pope Francis: The Covid-19 Crisis Reveals What Is in Our Hearts - The New York Times

Opinion | Pope Francis: The Covid-19 Crisis Reveals What Is in Our Hearts - The New York Times

By Jorge Mario Bergoglio  [Bishop of Rome]

With some exceptions, governments have made great efforts to put the well-being of their people first, acting decisively to protect health and to save lives. The exceptions have been some governments that shrugged off the painful evidence of mounting deaths, with inevitable, grievous consequences. But most governments acted responsibly, imposing strict measures to contain the outbreak.

Yet some groups protested, refusing to keep their distance, marching against travel restrictions — as if measures that governments must impose for the good of their people constitute some kind of political assault on autonomy or personal freedom! Looking to the common good is much more than the sum of what is good for individuals. It means having a regard for all citizens and seeking to respond effectively to the needs of the least fortunate.

It is all too easy for some to take an idea — in this case, for example, personal freedom — and turn it into an ideology, creating a prism through which they judge everything.

The coronavirus crisis may seem special because it affects most of humankind. But it is special only in how visible it is. There are a thousand other crises that are just as dire, but are just far enough from some of us that we can act as if they don’t exist. Think, for example, of the wars scattered across different parts of the world; of the production and trade in weapons; of the hundreds of thousands of refugees fleeing poverty, hunger and lack of opportunity; of climate change. These tragedies may seem distant from us, as part of the daily news that, sadly, fails to move us to change our agendas and priorities. But like the Covid-19 crisis, they affect the whole of humanity.

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Opinion | Should Trump Be Prosecuted? - The New York Times

Opinion | Should Trump Be Prosecuted? - The New York Times

Being president should mean you are more accountable, not less, to the rule of law.

By Andrew Weissmann

Mr. Weissmann was a senior prosecutor in the Mueller investigation.

3rd Circuit Appeals Court rebukes Trump lawyers in Pennsylvania case

 

We have been discussing the merits and demerit of sanctions of the Trump attorneys.   My reaction to the initial complaint filed by the Trump campaign was vulgar, a sentiment more delicately put by the New York Times editorial writers, then Judge Matthew Brann dismissing the case, and now in a unanimous opinion in the Third Circuit by Judge Bibas for himself,  Chagares and Smith:

  

The Campaign’s claims have no merit. The number of ballots it specifically challenges is far smaller than the roughly 81,000-vote margin of victory. And it never claims fraud or that any votes were cast by illegal voters. Plus, tossing out millions of mail-in ballots would be drastic and unprecedented, disenfranchising a huge swath of the electorate and upsetting all down-ballot races too. That remedy would be grossly disproportionate to the procedural challenges raised. So we deny the motion for an injunction pending appeal.  

​Having vigorously defended some ​who committed odious crimes I am generally aligned with Justice Hugo Black who in 1948 wrote:

And nowhere is this service deemed more honorable than in case of appointment to represent an accused too poor to hire a lawyer, even though the accused may be a member of an unpopular or hated group, or

may be charged with an offense which is peculiarly abhorrent​.

​But a different set of constraints operates when lawyers - for a fee or in hope of ingratia​ting themselves with a compadre or in hope of future business pursue a matter without "a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law."  RPC 3.7  None of those elements appeared to be present to Bibas, Smith, and Chagares.

  Such "lawyering" deserves rebuke beyond the blunt language of the District and Circuit judges.  A serious attempt was made to vitiate an election for the highest office.   I understand the impulse to shrug off the misconduct  for fear of appearing to replicate the "lock 'em up" tweets and cries of a Trump rally.  But we are not done yet with the restoration of good order.  This was not an idiosyncratic offense by some sad solo practitioner, though Rudy Giuliani now fits that bill.  But a blow at the heart of democracy by the personal lawyers of a norm-shattering President who to this day insists on his alternate view of facts.  We should call on the disciplinary authorities to say so.

Supreme Court 5-4 stays Cuomo exec order on Church and synagogue attendance

UPDATE: Jorge Mario Bergoglio, Bishop of Rome, `dissenting'? 

Responding to "emergency" petitions the the Roman Catholic Brooklyn Diocese and an Orthodox Jewish group Agudath Israel of America the Supreme Court has stayed pending appeal enforcement of Executive Order 202.45 of Governor Andrew Cuomo limiting attendance at houses of worship due to the dangers of transmission of the covid19 virus which has swept worldwide.  It provides:

Pursuant to Executive Order 202.42 and 202.45, all non-essential gatherings of individuals of any size for any reasons (e.g., parties, celebrations, or other social events) are limited to no more than twenty-five (25) or fewer people in regions that have reached Phase Three of reopening, and no more than fifty (50) people in regions that have reached Phase Four of reopening, so long as appropriate social distancing and face covering requirements are followed. Under Executive Order 202.41, any region that has not yet entered Phase Three of reopening, non-essential gatherings cannot exceed ten (10) people, and social distancing and face covering requirements must be adhered to.

The court issued six separate opinions, with newly appointed Amy Barrett in the majority while John Roberts dissented.  Also dissenting were Justices Breyer, Kagan, and Sotomayor.  The majority, in a per curiam unsigned opinion - overrides the Governor who is informed by the New York State and City Departments of Health who have advised him on the best steps to control the deadly pandemic.

- GWC

NY City Bar urges Adoption of ABA Rule barring discrimination "related" to the practice of law.

  The Professional Responsibility Committee of the New York City Bar Association has issued a Report urging that the New York courts conform their Professional Conduct Rules to those of the American Bar Association.

The measure has drawn critics such as Bradley Abramson of the "Alliance Defending Freedom" which offers Six Reasons.   Academic critics include:

Stephen Gillers, A Rule to Forbid Bias and Harassment in Law Practice: A Guide for State Courts Considering Model Rule 8.4(g), 30 Geo. J. Legal Ethics 195 (2017)

Josh Blackman, Reply: A Pause for State Courts Considering Rule 8.4(g), 30 Geo. J. Legal Ethics 241 (2017);

Robert Weiner, “Nothing to See Here”: Model Rule 8.4(g) and the First Amendment, 41 Harv. J. Law & Pub. Policy 125 (2018).

NY City Bar proposal:

 Rule 8.4 Misconduct

A lawyer or law firm shall not:

(g) engage in conduct related to the practice of law that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity or expression, marital status or socioeconomic status. This paragraph does not limit the ability of a lawyer to accept, decline, or withdraw from representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

 

Comment

[3] Discrimination and harassment by lawyers in violation of paragraph(g) undermine confidence in the legal profession and the legal system. Harassment includes harmful, derogatory, or demeaning verbal or physical conduct that manifests bias or prejudice towards others and includes conduct that creates an environment that a reasonable person would consider intimidating, hostile, or abusive. Typically, a single incident involving a petty slight, unless intended to cause harm, would not rise to the level of harassment under this paragraph. Harassment also includes sexual harassment, which involves unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature.

 

[4] Conduct related to the practice of law includes representing clients, interacting with witnesses, co-workers, court personnel, lawyers, and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social

activities in connection with the practice of law. Paragraph (g) does not prohibit conduct undertaken to promote diversity and inclusion by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing diverse employees or sponsoring diverse law student organizations.

[5] A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (g). A lawyer does not violate paragraph (g) by limiting the scope or subject matter of the lawyer’s practice or by limiting the lawyer’s practice to members of underserved populations. A lawyer’s representation of a client does not constitute an endorsement by the lawyer of the client’s views or activities. See Rule 1.2(b).

Ethics profs: Trump legal team members like Rudy Giuliani could face sanctions //SLATE

Trump legal team members like Rudy Giuliani could face sanctions //SLATE.

By SCOTT CUMMINGS [ucla], NORA FREEMAN ENGSTROM [sTANFORD], DAVID LUBAN [gEORGETOWN], and DEBORAH L. RHODE [sTANFORD]

Despite a definitive statement by the Department of Homeland Security that the 2020 election “was the most secure in American history,” since Election Day, lawyers supporting the Trump campaign have filed some three dozen lawsuits alleging voting irregularities in five key states. The most common legal claims are that Republican poll watchers were denied meaningful participation in the process of counting absentee and mail-in ballots and that supposedly defective Democratic votes were counted, while valid Republican votes were not.

So far, state and federal courts across the United States have quickly and decisively rejected the majority of these challenges for lack of a legal or factual basis. (As it stands, a running count kept by Democratic election lawyer Marc E. Elias has the GOP and Trump’s current tally as a lopsided 2–34—and the “wins” were partial.) A number of lawyers have begun to withdraw from these challenges, and cases in Arizona, Michigan, and Pennsylvania have been dropped. However, several challenges remain, and the president’s lawyer Rudy Giuliani continued to insist, as he did in federal court last Tuesday, that there had been “widespread national voter fraud,” while the lawsuits themselves don’t actually allege any specific fraud.

All this raises the question of the lawyers’ ethical conduct in bringing these cases in the first place. A New Jersey congressman has called for the disbarment of nearly two dozen Trump lawyers. As scholars who have devoted the better part of our professional lives to the study of legal ethics, we believe, based on the records publicly available to date, that the disciplinary case against certain of Trump’s lawyers is strong.

Of course, there is nothing unethical about launching a lawsuit thinking that it’s a long shot likely to fail. Lawyers cross fundamental professional boundaries, however, when they file cases that make unsubstantiated allegations of election fraud and heedlessly assist their client’s calculated effort to erode trust in our democratic system. For lawyers who have sworn to uphold the rule of law, that is an astonishing breach.

The ethical requirements that govern lawyers are set forth in the American Bar Association’s Model Rules of Professional Conduct. Though the particulars vary somewhat by state, these rules govern every lawyer practicing in the United States today and have requirements that govern the election conduct at issue. For example, Rule 3.1 states that 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.” Although filings are not frivolous “merely because the facts have not first been fully substantiated,” lawyers are duty-bound prior to filing to “inform themselves about the facts of their clients’ cases and the applicable law.” Moreover, lawyers have “a duty not to abuse legal procedure,” which, given the stakes in these cases, imposes a special obligation to ensure the basic accuracy and credibility of their challenges. And, under another governing provision—Federal Rule of Civil Procedure 11 and state-court counterparts—lawyers also can’t file suit “for an improper purpose” such as causing “unnecessary delay.”

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Pennsylvania Federal judge dismisses Trump suit as utterly groundless

In a devastating memorandum opinion federal District Judge Matthew W. Brann has ordered the dismissal of the complaint in Donald J. Trump For President, Inc. v. Boockvar, Secretary of the Commonwealth of Pennsylvania.  Brann is a Federalist Society member and former Republican Party official nominated by Barack Obama in 2013 at the urging of Senator Pat Toomey (R-PA).  Brann today penned an opinion that could support sanctions or discipline against both the lawyers who filed the complaint [then withdrew] and the succeeding counsel who pressed frivolous claims in apparent violation of RPC 3.1. 

Judge Brann explained his view:

Plaintiffs ask this Court to disenfranchise almost seven million voters. This Court has been unable to find any case in which a plaintiff has sought such a drastic remedy in the contest of an election, in terms of the sheer volume of votes asked to be invalidated. One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption, such that this Court would have no option but to regrettably grant the proposed injunctive relief despite the impact it would have on such a large group of citizens. That has not happened. Instead, this Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence. In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state. Our people, laws, and institutions demand more.

Defenders of the Trump lawyers like Professor Jonathan Turley have seen suppression of free speech in the calls by students at Harvard to graylist departing Trump officials who might seek academic refuge.  There is little that can be done to curb youthful excesses of passion such as may afflict those with an elevated sense of entitlement spurred by high LSAT scores.  But just as we celebrate heroic lawyers like Bryan Stevenson who labor long for justice for the despised, we can shun and sanction those who groundlessly work to undermine democracy for a fee.

Trump’s Legal Team Sets a Precedent for Lowering the Bar - The New York Times

Trump’s Legal Team Sets a Precedent for Lowering the Bar - The New York Times

By Mark Leibovich

WASHINGTON — President Trump, who said there would be so much winning in his White House that Americans would grow tired of it, is of a different mind-set these days. He is not, apparently, tired of losing.

Which is what he and his allies keep doing in their desperate efforts to overturn an election that Mr. Trump did not win.

The president’s win-loss record in court cases alleging election fraud or other irregularities now stands at 2 to 32, according to a tally maintained by Marc Elias, a Democratic election lawyer. Mr. Elias updated his score on Friday afternoon after a court in Nevada rejected a Republican effort to request a new election. Nevada went for Joseph R. Biden Jr.

On Thursday, the president had claimed on Twitter that he had “a very clear and viable path to victory” and that “pieces are very nicely falling into place” for his re-election.

Turley: “The First Thing We Do”: The Lawless Campaign To Harass Lawyers Representing The Trump Campaign – JONATHAN TURLEY

Columbus, Ohio, law firm withdrew from 'its representation 

of the Trump campaign in Pennsylvania

“The First Thing We Do”: The Lawless Campaign To Harass Lawyers Representing The Trump Campaign – JONATHAN TURLEY

Jonathan Turley is a George Washington University law professor who defended Donald Trump at his impeachment trial.  He writes that those who criticize law firms like Jones Day and Porter Wright for their representation of the Trump campaign are suppressing free speech and acting on the basis of partisan loyalty not evidence.  But some criticism requires little evidence.  Such is the case with Columbus, Ohio firm Porter Wright filed a complaint against the Pennsylvania Secretary of State Kathy Boockvar.  The complaint filed by Porter Wright sought to invalidate  2.75 million mail-in ballots.  Mail-in ballots have been predominantly Democratic votes spurred by warnings of the dangers of covid19 transmission in lines and crowded places, as well as warnings by the postal service that due to budget cuts it could not guarantee prompt delivery of ballots to election offices.

Shunning is a perfectly reasonable response to reprehensible conduct.  It is the flip side of lionizing those who defend the powerless against the powerful. One need not know anything other than that the ballots were received, reviewed, and counted to conclude that seeking to disregard millions of votes is anti-democratic.  The rules of professional conduct that were developed to protect the defenders of those charged with crime do not require indifference to those who for a fee bring such heedless actions on behalf of a President who refused to promise to abide by the verdict of the voters, while ceaselessly lambasting the responsible media as Fake News.

“Law Firm Stops Representing Trump Campaign in Pennsylvania Suit” | Election Law Blog

Porter Wright, a 222 member Columbus, Ohio law firm has withdrawn from the case it filed last week in federal court in Pennsylvania. The firm was reported to be internally divided and subject to a media campaign by an anti-Trump group of former Republicans called The Lincoln Project.

“Law Firm Stops Representing Trump Campaign in Pennsylvania Suit” | Election Law Blog

Lawyers are obligated to give candid advice to their clients.  Despite the expectation of "zeal" in representation they are limited by Rule of Professional Conduct 3.1 which provides

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, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

The lawsuit filed by Porter Wright sought to invalidate the 2.75 million mail-in ballots.  Mail-in ballots have been predominately Democratic votes spurred by warnings of the dangers of covid19 transmission in lines and crowded places, as well as warnings by the postal service that due to budget cuts it could not guarantee prompt delivery of ballots to election offices.

The Rules of Professional Conduct are reflected in Federal Rule of Civil Procedure 11 which provides for monetary sanctions by courts which find lawyers to have asserted patently groundless claims.  It provides, in part, that

(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

The tradition of zealous representation and the First Amendment right to petition for redress of grievances have made courts slow to impose financial sanctions.  However the gravity of the remedy sought - disenfranchisement of millions, changing an election result may make such sanctions likely.  By withdrawal from the case Porter Wright has spared itself such indignity.  But others have stepped into their place.  

In a second amended complaint new lawyers for the Trump campaign again attack the integrity of election officers and seek invalidation of votes or in the alternative an order directing the Pennsylvania state legislature to choose the electors who would cast the state's votes for President.  The indirect election process created by the federal Constitution casts votes state by state in a manner which only loosely reflects the popular vote  Thus Donald Trump was elected President though he received 3 million fewer votes than did Hillary Clinton.

The “Soft Law” of the Supreme People’s Court | Supreme People's Court Monitor

We are accustomed in the U.S. to see judicial power in a rather narrow frame: decisions and Rules of Court.  But the Supreme People's Court of China has many tools in addition to decisions.  Susan Finder reviews  and explains them.

Most of the coverage of China's legal system goes, unsurprisingly, to the repressive measures: the national security law in Hong Kong, arrests and detentions of dissenters, etc.  But China is a land of contradictions - its highly competent management of the covid19 pandemic after early stumbles, economic management, and - little recognized - is the steady growth in the competency of its judiciary.

Susan Finder - an American lawyer living in Hong Kong - for the past three decades has been paying close attention to the Supreme People's Court.  Our nine-member high court commands a modest bureaucracy overseeing  the federal courts.  A broadly diverse set of state courts manages the rest of the system.  But the SPC can be better understood as a unitary department of the national government which oversees and directs the provincial and local courts.

The SPC of course decides cases, but it exercises its leadership by way of a wide range of tools.  In addition to decisions in individual cases it issues, Opinions which Finder describings Guiding, model decision, normative, harmonizing, and managerial.

So the SPC issues Conference summaries, professional judges meeting summaries, Replies to requests for instructions, Notices, Rules, Memoranda of Understanding with other departments such as procurators.  The SPC also selects case and decisions for special attention.  Among the most significant are Guiding Opinions, Model Case, reference cases.  Of particular note are decisions of the SPC Circuit Courts such as the specialized intellectual property courses. - GWC

The “Soft Law” of the Supreme People’s Court | Supreme People's Court Monitor

by Susan Finder (Peking University School of Transnational Law - Shenzhen)

I am very honored to have this opportunity to publish some of my observations about the developments of the Supreme People’s Court (SPC) with TianTong Litigation Circle. I have been observing developments of the SPC for almost 30 years, and am honored to have been included in the first batch of members of the international expert committee of the China International Commercial Court. The views expressed in this article are my own and should not be attributed to the committee, the China International Commercial Court, or the SPC.
One of the many special features of the SPC, as an important supreme court in the world, that it allocates a great deal of effort to different types of “soft law.” Soft law is a concept that the late Professor Luo Haocai, formerly vice president of the SPC, introduced and developed in China, so discussing the “soft law” of SPC is particularly appropriate. For those who are not aware of this academic concept, it means norms that affect the behavior of related stakeholders, even though the norms do not have the status of formal law.
This article gives my thoughts on two aspects of SPC soft law—its judicial policy documents and cases that it has specially selected.

I. Judicial documents

I have a special interest in judicial documents, because they drew me into researching the SPC in the early 1990s.
The seven categories of documents below are classified as judicial documents or “judicial normative documents” (“司法文件” or “司法规范性文件”) and sometimes judicial policy documents” (“司法政策性文件”). The SPC’s website lists some of them. An attentive reader can discover from reviewing the documents on the website that my description is not comprehensive. The SPC issues many other documents as well, covering personnel and administrative matters, but this article focuses on those with normative provisions.
SPC judicial documents are partially governed by 2012 regulations on the handling of SPC official documents (“人民法院公文处理办法”), which leave much unsaid and unexplained. It seems likely that additional guidance exists, whether in the form of bureaucratic custom or internal guidelines. Many, but not all, are the SPC’s special versions of Party/government documents.

1. Categories of judicial documents***KEEP READING

Judge Sullivan bars Trump expulsion of minors

United States District Judge Emmett Sullivan ruled in P.J.E.S. v. Wolf, Secterary of Homeland Security, that expulsion from the United States of thousands of children without due process exceeded the authority that public health emergency decrees confer.  The judge's fifty page opinion explains that prior to COVID19 "all unaccompanied children retained their rights under the Immigration and Nationality Act to (1) apply for asylum,  8 USC § 1158(a)(1); contest their removal to a country where their “life or freedom would be threatened . . . because of [their] race, religion, nationality, membership in a particular social group, or political opinion,” 8 USC  § 1231(b)(3) (“withholding of removal”); or, pursuant to Foreign Affairs Restructuring and Reform Act, (3) make a case that “he or she would be tortured if removed to the proposed country of removal.”"

But without Notice and Comment - requirements of the Administrative Procedure  Act- the Trump administration's CDC Director "issued an order suspending the introduction of “covered aliens” which he defined as “persons traveling from Canada or Mexico (regardless of their country of origin) who would otherwise be introduced into a congregate setting in a land Port of Entry [(“POE”)] or Border Patrol station at or near the United States borders with Canada and Mexico” for a period of 30 days".

Unions Disagree over Biden's Labor Secretary Pick | Portside

An embarrassment of riches.

Unions Disagree over Biden's Labor Secretary Pick | Portside

Union leaders are hoping to influence Joe Biden's pick for Labor secretary — but they're increasingly at odds over who should get the job.

AFL-CIO President Richard Trumka and some of his organization’s largest affiliate unions are singing the praises of Boston Mayor Marty Walsh, who previously led the city’s Building and Construction Trades Council and could appeal to construction workers who supported President Donald Trump. But other unions in the federation are publicly pushing Rep. Andy Levin, a Michigan Democrat who worked as a labor organizer and ran the state’s job training program before he was elected.

Supreme Court: The huge implications of a new union-busting case - Vox

Supreme Court: The huge implications of a new union-busting case - Vox

By Ian Millhiser

The Supreme Court announced on Friday that it would hear Cedar Point Nursery v. Hassid, a case targeting a 45-year-old California regulation that allows union organizers to briefly enter agricultural workplaces to speak to farmworkers. But the case has implications that stretch well beyond labor organizing. Among other things, Cedar Point could potentially allow businesses to deny entry to health inspectors and other government officials who ensure that those businesses are being operated safely.

The Fifth Amendment provides that private property shall not “be taken for public use, without just compensation.” The Cedar Point plaintiffs argue that this “takings clause” gives them a broad right to “exclude unwanted persons from [their] property,” including union organizers — and that property owners are entitled to compensation if this right is violated by a state regulation.

If the Supreme Court were to hold that the government may not require a business to allow unwanted people on its premises, the implications could be staggering. It could mean, for example, that the government runs afoul of the takings clause if it requires restaurants to submit to periodic health inspections, or if it requires power plants to be inspected to monitor their emissions, or if factories are required to allow workplace safety inspectors to observe working conditions.

A victory for the Cedar Point plaintiffs could potentially endanger a wide range of land use regulations — such as requirements that certain buildings install sprinkler systems to prevent a fire from spreading, or requirements that buildings in earthquake-prone areas be built to protect occupants from such quakes.

The Court could also potentially hand down a narrower ruling that singles out unions for inferior treatment. In Janus v. AFSCME (2018), for example, the Supreme Court voted along party lines to forbid public sector unions from charging certain fees to non-union members who benefit from the union’s services. But the Court has, at least so far, not applied Janus to non-unions that charge similar fees.