Monday, November 30, 2020

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

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