Legal ethics

What’s a public censure when you’re shameless?

So, I’ve been starting and stopping a post about the most recent ABA Formal Ethics Opinion to be released. Partly, because the opinion is a bit pedestrian generally involving weighing in on a situation that is largely always an “it depends” on factors that are hard to spell out in an ethics opinion and partly because the parts of it that aren’t pedestrian are pretty dense to unpack in a weigh that is meaningful and clear on here.

So, imagine my luck that instead, I can turn to writing about a very non-pedestrian and very easy to write about situation!

You may have seen the news that Jenna Ellis — one of the many lawyers whose work for Donald Trump has put them in the crosshairs of legal or ethical troubles — agreed to a public censure in Colorado for making a laundry list of deceptive statements while representing her client.

Now, to be clear, when I say a laundry list … we’re talking about the amount of laundry a family of four with kids has to do because the statements amount to 10 false statements during roughly one month at the end of 2020. And when I say representing her client, to be clear, we are talking not about in-court false statements but statements she was making on television and on Twitter to try to sway public opinion and make people think an election was being stolen when nothing of the sort was going on. Both of those things are important because of all the rest of what will be discussed — as well as the fact that there continue to be those that want to argue that lawyers should have First Amendment rights to lie and avoid discipline when representing public officials or people subjected to public scrutiny as long as they are not doing so in court.

The 10 statements that Ms. Ellis has formally agreed were false are:

• November 13, 2020: Respondent claimed that “Hillary Clinton still has not conceded the 2016 election.”

• November 20, 2020: Respondent appeared on Mornings with Maria on Fox Business and stated: “We have affidavits from witnesses, we have voter intimidation, we have the ballots that were manipulated, we have all kinds of statistics that show that this was a coordinated effort in all of these states to transfer votes either from Trump to Biden, to manipulate the ballots, to count them in secret … “
• November 20, 2020: Respondent appeared on Spicer & Co. and stated: “with all those states [Nevada, Michigan, Pennsylvania, Wisconsin, Georgia] combined we know that the election was stolen from President Trump and we can prove that.”
• November 21, 2020: Respondent stated on Twitter under her handle @JennaEllisEsq.: “… SECOND, we will present testimonial and other
evidence IN COURT to show how this election was STOLEN!”
• November 23, 2020: Respondent appeared on The Ari Melber Show on MSNBC and stated: “The election was stolen and Trump won by a landslide.”
• November 30, 2020: Respondent appeared on Mornings with Maria on Fox Business and stated: “President Trump is right that there was widespread fraud in this election, we have at least six states that were corrupted, if not more, through their voting systems …. We know that President Trump won in a landslide.” She also stated that “The outcome of this election is actually fraudulent it’s wrong, and we understand than when we subtract all the illegal ballots, you can see that President Trump actually won in a landslide.”
• December 3, 2020: Respondent appeared on Mornings with Maria on Fox Business and stated: “The outcome of this election is actually fraudulent it’s wrong, and we understand than when we subtract all the illegal ballots, you can see that President Trump actually won in a landslide.”
• December 5, 2020: Respondent appeared on Justice with Judge Jeanine on Fox News and stated “We have over 500,000 votes [in Arizona] that were cast illegally … “
• December 15, 2020: Respondent appeared on Greg Kelly Reports on Newsmax and stated “The proper and true victor, which is Donald Trump … “
• December 22, 2020, Respondent stated on Twitter, through her handle
@JennaEllisEsq, “I spent an hour with @DanCaplis for an in-depth discussion about President @realDonaldTrump’s fight for election integrity, the overwhelming evidence proving this was stolen, and why fact-finding and truth-not politics-matters!”

Now, Ms. Ellis’s formal admission that these statements were actually false is important because there are still a gobsmackingly large number of people who still believe that nonsense. I don’t think any of them read my blog so the news won’t reach them through me. The public censure itself indicates in part that it was viewed as a good enough remedy because it will help counteract the public nature of the false statements.

Funny enough though, the news will kind of reach them through Ms. Ellis. Because she has taken to Twitter today to try to spin all of this by saying that anyone who says she has admitted to lying is making their own false statement. See the linked tweet below.

Jenna Ellis 🇺🇸 on Twitter: “The politically-motivated Left failed miserably in their attempt to destroy me. They’re now trying to falsely discredit me by saying I admitted I lied. That is FALSE. I would NEVER lie. Lying requires INTENTIONALLY making a false statement. I never did that, nor did I stipulate…” / Twitter

Ms. Ellis’s approach to trying to tamp down this development is a bit rich, of course. First, what is being claimed about what it means for something to be a lie speak volumes about pretty much anyone that has allowed themselves to be in Trump’s orbit and why they are all willing to say and do what they do while denying lying or being liars. Second, when you go back and look at what she actually said and has admitted were misrepresentations, it is difficult to understand how a person could make such statements, at the levels of specificity and detail, and only do so negligently or even accidentally, unless of course you are either (a) stupid or (b) willing to say whatever someone else tells you to say without having the slightest care about its level of truthfulness.

So, if you want to take Ms. Ellis at her word now (though based on precedent doing so is a bit of a “buyer beware” kind of situation), then she’s not a liar but one of those two other options. Or perhaps both.

But what she definitely is … is someone for whom the imposition of a public censure does not have much impact because she does not seem capable of being made to be ashamed for her actions.

And, since I may never get around to writing about that ABA opinion in more detail, one of the pedestrian points it makes is pertinent to Ms. Ellis’s case … no matter where your conduct occurs, you are always subject to discipline in the state where you got your license.

One reply on “What’s a public censure when you’re shameless?”


No one can come away from her admissions without the iron clad belief that the election was a good one. She can niggle about her not intending to lie, but so what? The Colorado Bar scooooored!

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