A team of lawyers behind a series of failed post-election challenges received their first court-ordered sanctions this week, a move that could trigger future disciplinary proceedings against the attorneys.
U.S. District Judge Linda Parker of the Eastern District of Michigan’s scalding 110-page opinion against the “Kraken” lawyers, including Sidney Powell, Lin Wood, Howard Kleinhendler and several others, refers the attorneys to disciplinary authorities to investigate them for potential suspension or disbarment. Donald Campbell, who represents most of the sanctioned attorneys, said Thursday that they disagree with the ruling and plan to appeal it.
Several legal experts said that while the attorneys can appeal other penalties Parker ordered, including paying for Detroit and Michigan state officials’ attorney fees in the case, as well as taking continuing legal education courses, they can’t take issue with the judge’s referral to disciplinary authorities. That leaves disciplinary bodies in eight states and D.C. deciding whether to take further action against the lawyers, with some of those bodies likely already undertaking investigations.
Powell is one of the lawyers who was already facing scrutiny. Michigan officials said Thursday that the Texas Office of Chief Disciplinary Counsel has scheduled a Nov. 4 investigatory hearing about Powell’s bar license. State officials in February filed complaints against three other attorneys in the case: Greg Rohl, Scott Hagerstrom and Stefanie Junttila.
“It’s coming from a federal district judge and that needs to be taken seriously, if for no other reason,” Steven Lubet, a law professor at Northwestern University, said of Parker’s referral. “But this was notorious litigation that stretched over months, almost from coast to coast, that turned out to have little or no basis in law or fact. And I think some of the jurisdictions involved and perhaps all of them will dig into this with investigatory zeal and will take it seriously.”
Parker on Wednesday indicated that she doesn’t believe her court ruling alone will be enough to block future meritless lawsuits, particularly from Powell. In a footnote, the judge said she is “troubled that Powell is profiting from the filing of this and other frivolous election-challenge lawsuits” and said other lawyers in the case might be as well, as they seem to be tied to Powell’s group “Defending the Republic.”
“What is concerning is that the sanctions imposed here will not deter counsel from pursuing future baseless lawsuits because those sanctions will be paid with donor funds rather than counsel’s. In this court’s view, this should be considered by any disciplinary authority reviewing counsel’s behavior,” Parker wrote.
Different jurisdictions have their own procedures for investigating attorney misconduct. The lawyers involved in the case also had different roles in the litigation. While Parker said working fewer hours on the lawsuit did not exempt the involved attorneys from sanctions in her court, disciplinary authorities could decide to hand down differing penalties, if any, based on individual lawyer’s conduct.
Bruce Green, a legal ethics scholar with Fordham University, said he believes Parker’s opinion serves as a “baseline” for other judges who are considering similar sanctions. A pair of federal judges in Wisconsin are considering motions for sanctions over post-election litigation from counsel for the Trump campaign, as well as Powell and others.
“If you have other cases that are like this in other jurisdictions, if the court doesn’t find sanctionable misconduct, the court’s going to have to explain why. Were these pleadings less frivolous and had more of a legal basis for them? Were the affidavits less outlandish and was more time spent preparing them?” Green said. “I think that this creates a problem for the lawyers in those other cases, because it’s the standard against which other courts are going to have to compare their cases.”
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