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
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