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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