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  • Writer's picturefmblum

A Primer On Legal Ethics And Election Challenges

Updated: Jan 2, 2021

If you have been trying to follow the legal boxing match that has been taking place following the election you might have missed that it has also served as a magnificent example of the role that legal ethics play in how lawyers represent their clients. And before you give a snort or laugh at the concept of legal ethics; they do exist and are important in understanding exactly what is happening in the courtroom.

If you doubt the role that lawyers’ ethics have played, consider these two conundrums. Trump's lawyers, aka Rudy Giuliani and company, have continually yelled to the high heavens in public that the election was stolen through massive fraud. Yet in the courtroom Trump’s lawyers have conceded that the challenges to the election were not based on fraud and that there is no evidence of fraud. Secondly, why would so many lawyers withdraw from representing the President?.

The answer is that these lawyers are bound by strict ethical requirements that required them to take the path they took.

Before we get into the particulars, there is a need to understand the definition of legal ethics, both from a theoretical and a practical standpoint. First, doing what is ethical is not the same as doing what is moral. Here is the classic example that is taught in almost every law school: What are the ethical and moral requirements when an attorney representing a criminal defendant is aware of the existence of evidence that would prove his client guilty of a horrible crime? Almost every moral code would require the attorney to reveal the evidence so that a criminal can be properly punished and the public be made safer. At the same time, however, every code of legal ethics demands that the attorney stay silent as the attorney's duty is to the client and not to the public.

The foundational ethical requirement is that an attorney is required to zealously represent her client within the bounds of the rules of professional ethics. What this means is that the lawyer's sole obligation is to her client, not to the public at large, not to her own political views and not even to the "truth." The attorney is not required to agree with the client, but that attorney is required to be able to set aside those beliefs. If she cannot do that, then she cannot represent the client.

Let me give you an example from my own legal past. Years ago I was asked by the ACLU to represent a group of Nazis who were thrown out of a restaurant for wearing swastikas on their lapels. I took the case, even as I did not adopt their philosophy since I found it repugnant to everything I believed in. The ethical predicate was that I was able to set aside my beliefs and zealously represent them.

Zealous is the critical word in understanding a lawyer's obligations. It is defined as "with great energy or enthusiasm in pursuit of a cause or objective." It means that I had to represent the Nazis without reservation. Not half heartedly. Fully. Without reservation.

That does not mean that there are not constraints that create boundaries that may not be transgressed by a zealous advocate. One of the main constraints is the prohibition on lying to the court. Lying to the court is a quick path to extreme sanctions being assessed against an attorney and lawyers will go to great lengths to not lie even as they still zealously represent their clients.

Illustrations of prohibition against lying were plentiful when examining the conduct of lawyers representing Trump. My favorite one was when during a hearing on a challenge to the Pennsylvania results, the judge asked Trump's lawyer if Republican election observers were allowed to view ballot counting:

Judge : “Are your observers in the counting room?”

Trump lawyer: "There's a non-zero number of people in the room.”

The attorney gave a perfectly truthful answer that conveyed no information that would hurt his client. It is akin to one of my favorite lawyer jokes. A man in a hot-air balloon has been blown off course and has not seen anyone in days. Hungry and almost out of hope, he is blown over a legal convention. He yells down to the lawyers, “Where am I?” The lawyers respond, "In a balloon."

The difference between the balloon joke and the reality of the Pennsylvania courtroom was the presence of a judge who easily recognized the evasion. After hearing the “non-zero” response, the Judge demanded a straight answer. The Court, invoking the ethical requirements that bound Trump's attorneys, asked: “I’m asking you as a member of the bar of this court: Are people representing the plaintiffs in the room?” The lawyer then responded more directly: “Yes.”

Another example occurred when another Trump lawyer was questioned about allegations of fraud concerning almost 600 ballots that were sought to be disqualified. Since Trump and his surrogates had been claiming that fraud was involved in including the ballots in the State count, the Court made the following inquiry.

THE COURT: In your petition, which is right before me — and I read it several times — you don’t claim that any electors or the Board of the County were guilty of fraud, correct? That’s correct?
GOLDSTEIN: Your Honor, accusing people of fraud is a pretty big step. And it is rare that I call somebody a liar, and I am not calling the Board of the [Democratic National Committee] or anybody else involved in this a liar. Everybody is coming to this with good faith. The DNC is coming with good faith. We’re all just trying to get an election done. We think these were a mistake, but we think they are a fatal mistake, and these ballots ought not be counted.
THE COURT: I understand. I am asking you a specific question, and I am looking for a specific answer. Are you claiming that there is any fraud in connection with these 592 disputed ballots?
GOLDSTEIN: To my knowledge at present, no.
THE COURT: Are you claiming that there is any undue or improper influence upon the elector with respect to these 592 ballots?
GOLDSTEIN: To my knowledge at present, no.

The candor that is required in the courtroom may also be an explanation as to why so many of the law firms that have represented Trump in these proceedings have withdrawn. Just as with the prohibition against lying, attorneys are not allowed to represent clients in cases which they know have no merit.

Because of the duties that attorneys owe to their clients, they are not allowed to tell the court that lack of merit is the reason that they are withdrawing. The reasons for withdrawal are usually couched in terms of irreconcilable differences with the client or simply as reasons that cannot be explained to the court. While we do not know the true reasons that a multitude of firms have withdrawn, given the failure of Trump's legal team to win even a single significant victory, it does not take a clairvoyant to know that part of the reason has to be the recognition that the challenges did not have merit in the eyes of counsel.

The ultimate clarity that Trump's lawyers have used when directly questioned by the courts is sharply contrasted with what we are being told by surrogates outside the courtroom. It is easy to claim fraud when there are not repercussions for doing so and your boss wants you to make the claim. However, the rules of the game change when you are an attorney and have to make representations to the court. Regardless of what you wish you could say, even if your boss is the President of the United States, legal ethics demand that lies not be told and that the truth be spoken.

The Great and Terrible Oz would like you to ignore the man behind the curtain, but if you want the truth, you must ignore what is said in public and instead listen carefully to what Trump’s lawyers say when they are directly questioned by the court.

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