I need something fun in my life at the moment to help deal with some of the insanity that is all around us all.
So, let’s tell something of a non-linear story about how haphazardly the disciplinary rules can be enforced as against lawyers. (Okay, so maybe you and I see “fun” differently.) Typically, many folks who do what I do for a living will tell you that the biggest divide in disciplinary enforcement is between how solo practitioners and lawyers in very small firms are more often singled out and disciplined than are lawyers who practice in large firms.
But this is a story of someone who now appears to be a solo practitioner, and who, as we will now discuss, is engaging in something of a speed-run through the rules of ethics to see if he can violate all of them in one 2-3 week period. But this solo practitioner, I’d be willing to bet (were I a betting man) will not face the consequences for his conduct that any other solo practitioner might face.
This is a story that, I think, reveals that the real imbalance in rules enforcement is between those who are powerful and those who are not. Yes, dear reader, this is a story about the absolute trainwreck of a lawyer who is the personal attorney to the outgoing President of the United States.
If you are truly a glutton for punishment, you can go listen to the complete audio recording of the hearing on November 17, 2020, during which this attorney demonstrated ignorance of enough important legal concepts to raise questions about compliance with Rule 1.1 regarding competence, but, more troublingly, also made quite a few statements to the court that could trigger discipline for untruthfulness under Rule 3.3 and Rule 8.4(c) and all in the pursuit of claims and contentions that are so unmeritorious as to run afoul of Rule 3.1.
But, perhaps even more remarkably, this attorney’s participation at the hearing only came about, at least in part, because he was willing to make false statements in his pro hac vice motion for permission to appear.
(As a side note, literally as I’m trying to write this post, this lawyer is holding a press conference, sweating his hair dye down both sides of his face, and continuing with just objectively, provably false statements that would also seem to trigger real ethical issues under Rule 3.6 if his client wasn’t also hastily withdrawing lawsuit after lawsuit through voluntary dismissals. )
(Now, a different lawyer, part of the same team, is engaged in rhetoric that appears to be inciting militias to take the election outcome into their own hands. She was followed by another, different lawyer, accusing unnamed election officials of committing fraud. Again, all of these are statements being made that fly directly in the face of actual evidence. The hair dye sweat image is funny, but turns out nothing else about this is fun.)
In making his application for pro hac admission in a federal court case in Pennsylvania, and thus deciding to appear in federal court again for the first time in 30 years, this lawyer filed a motion that indicated that he was licensed and in good standing in a number of different jurisdictions, including D.C. But as this article walks you through, a number of people have confirmed that the attorney is actually current administratively suspended in D.C. for failure to pay certain fees.
That’s not how these things are supposed to work and falsely representing one’s status to a federal court to gain pro hac admission would expose regular lawyers to a significant risk of discipline. Among other rules implicated by that kind of conduct, RPC 7.1 requires lawyers to refrain from making false statements about themselves or their services.
And to keep to my commitment that this post be a non-linear story, I will close by saying that the press conference mentioned above will likely go down in history as being most memorable for the “My Cousin Vinny” reference, but that little anecdote itself was in furtherance of just the titanic levels of mendacity on display from this lawyer. The anecdote involved reference to the portion of the movie where Joe Pesci’s character impeaches the credibility of an eyewitness during cross-examination and pointing out how her version of events was unbelievable once she demonstrated that from a similar distance she could not tell how many fingers Joe Pesci’s character was holding up. Yet, the only way the story was at all germane was because this lawyer was trying to use it in aid of lying about how far away ballot count observers were when allowed to observe the counting of ballots.
Will any of this end up in the imposition of any discipline or consequences? I’m highly cynical. Candidly, given the lengths he is willing to go, and the lengths his client is willing to go, to subvert democracy, the United States will be lucky if this lawyer just continues to be subjected to public ridicule and derision.