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.
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