Fast and loose with the rules in election challenges
I have watched with amazement the lawsuits that have been filed over the recent presidential election. The sloppiness and shoddiness of the lawyers who have filed these lawsuits is remarkable.
Some of these lawyers, at one time, had the respect of their peers but have done great harm to their reputations by engaging in conduct that is demeaning to lawyers and may be unethical. I can already hear the responses to a claim that lawyers are unethical. The old lawyer joke that you can tell when a lawyer is lying because his lips are moving may be funny, but the events of the past two months are not a laughing matter.
In William Shakespeare’s “King Henry VI,” Dick the Butcher says that “the first thing we do, let’s kill all the lawyers.” Butcher was the follower of the rebel Jack Cade, who advocated chaos and disorder so he could become king. Thus, although the words belong to Shakespeare, he was intending to praise lawyers who instill justice in society. Is Donald Trump a modern-day Dick the Butcher? Has he been sowing discord and disorder so he can become king? His lawyers are certainly not serving our profession well.
The president has enlisted the aid of lawyers who may have either ignored or blatantly violated the ethical rules and rules of procedure by filing lawsuits that have no factual or legal basis. Let us look at the rules and you be the judge.
It begins with the opening paragraphs of our Rules of Professional Conduct. The preamble states that “a lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” A lawyer should demonstrate respect for the legal system.
Regarding presentation of meritorious claims and contentions, Rule 4-3.1 of our Rules states: “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.” Another rule provides that a lawyer shall not make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law.”
The Rules of Professional Conduct are very clear. In addition, there is another rule of procedure, called Rule 11 in federal courts and Rule 55.03 in the Missouri Rules of Civil Procedure. All states have a similar rule. Rule 11 states that when presenting a pleading to the court, the attorney certifies to the best of the person’s knowledge, information and belief that he or she has made a reasonable inquiry under the circumstances that the pleading is not being presented for an improper purpose, is warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or by establishing new law. The claims must have evidentiary support or if specifically identified will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
We have witnessed unprecedented legal challenges to the 2020 presidential election. Over 60 lawsuits have been filed in state and federal courts and even directly in the United States Supreme Court. All have failed but one.
Many of the cases have been based on the ruling that the party presenting the claim does not have standing to do so, or that the issue presented is moot, which means that the matter at issue has been resolved, leaving no live dispute for a court to resolve.
In the case brought by the state of Texas and 17 Republican attorneys general (including Missouri’s), the lawsuit challenged the election laws of Georgia, Michigan, Pennsylvania and Wisconsin. The Supreme Court denied the Texas lawsuit because “Texas has not demonstrated a judicially cognizable interest in the manner in which another state conducts its elections.” In other words, Texas has no right to complain about Pennsylvania election laws.
In other cases, the court has decided that the time to challenge a state’s legislation has passed and that the challenges should have been made before the election. I analogize it to a referee in a football or basketball game waiting until after the play has ended to see if the receiver caught the ball, or the basketball player has made the basket to determine if a foul occurred. In the setting of the election, the party challenging the law would not have done so had the election turned out differently. The courts have little patience for such Monday-morning quarterbacking.
On Jan. 6, Congress certified the election results under horrifying circumstances. This is the last step in the process. The inauguration can proceed although some of the legal challenges will likely continue.
At least one judge has hinted that he may sanction the lawyers who presented a case in his court. Complaints may be filed before bar associations in other states challenging the actions of lawyers in the cases for violating the rules of professional conduct, but those will not be decided soon.
In the meantime, I am sure we will continue to hear complaints of fraud and misconduct in the conduct of the elections. Such complaints may even spread to other states in which Republican senators have won re-election. I suspect we will be hearing complaints about this election when the Iowa caucuses convene in 2024.
Bob Buckley is an attorney in Independence. Email him at email@example.com.