Saturday, November 28, 2020

MCN: Punditry and lawyering are two very different things

Matthew T. Mangino
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November 27, 2020

President Donald Trump's campaign lawyers Rudy Giuliani and Sidney Powell have repeatedly made baseless claims of widespread voter fraud and, through a flurry of lawsuits challenging the results, may have run afoul of rules barring lawyers from making dishonest statements.

New York Congressman Bill Pascrell Jr. has filed complaints against Giuliani and 22 other lawyers in Arizona, Michigan, Nevada, Pennsylvania and New York alleging the lawyers engaged in “conduct involving dishonesty, fraud, deceit, or misrepresentation.”

He called the campaign legal team’s effort to overturn election results with frivolous lawsuits “misconduct and an affront to the rule of law.”

Giuliani, a former federal prosecutor and Mayor of New York City, made unsubstantiated claims in press conferences and media appearances about electoral fraud. If Giuliani would have restricted his conduct to news conferences and television interviews he might have avoided the scrutiny of judges and state bar authorities.

However, on the eve of an argument in front of a Pennsylvania federal judge, after three Trump lawyers withdrew from the case, Giuliani inserted himself as lead counsel. In Donald J. Trump for President, Inc. v. Boockvar, Giuliani asked the court to discard about 700,000 mail-in ballots.

Giuliani’s argument was devoid of any rational basis for success. His rambling presentation was lampooned by the legal community and met with derision by the judge. The claims were dismissed with a scathing judicial opinion.

Lawyers are not supposed to bring lawsuits that are frivolous, have no legal merit or are downright dishonest. All 50 states and the District of Columbia have legal ethics rules for lawyers that are derived from standards promulgated by the American Bar Association.

In Pennsylvania, the state follows the American Bar Association Model Rules of Professional Conduct. Pennsylvania Rule of Professional Responsibility 3.3 provides a lawyer is prohibited from making “a false statement of fact or law to a tribunal.”

Typically, a complaint is filed with the Disciplinary Board and an investigation ensues. If the state board believes there has been a potential breach of ethical conduct, a formal complaint is filed and hearing scheduled. An ethical violation can result in professional discipline - a reprimand, a temporary license suspension or disbarment.

On a federal level, judges can punish lawyers who fail to meet the ethical standards of candor or legitimate purpose. Federal Rules were established to deter lawyers from pursuing false, misleading or dilatory actions and authorize judges to punish such conduct.

Federal Rule 11 provides that a lawyer must assert that litigation “is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.”

In Michigan another Trump campaign lawyer has been accused of crossing ethical lines.

Republican officials in Michigan initially refused to certify the election results, but quickly reversed themselves.

Mark “Thor” Hearne, a Trump campaign lawyer submitted a filing with the court claiming that Wayne County, Michigan officials “declined to certify the results of the presidential election.”

That statement was not true, and according to Reuters, Hearne acknowledged the same. Attorneys for the city of Detroit asked a judge to reprimand Trump’s campaign for spreading “disinformation” and to strike the document in question from the record as a sanction.

The Trump campaign has filed at least 36 lawsuits across the country relating to ballot tabulation. Now, some of Trump’s targets are fighting back. The NAACP Legal Defense and Educational Fund, Inc., a non-partisan civil and human rights organization, filed a lawsuit challenging the Trump campaign’s ongoing efforts to overturn the results of the presidential election by disenfranchising Black voters in Michigan.

According to the NAACP Education Fund website, the lawsuit claims that both the president and his campaign are in violation of the Voting Rights Act of 1965, by exerting pressure on state and local officials not to count or certify votes.

Joe Biden is the President-elect. Disinformation and meritless lawsuits, no matter how prodigiously filed and vigorously pursued, will not prevent Biden from being president on Jan. 20, 2021. That fact should not insulate those who flouted the rule of law from being held accountable.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at and follow him on Twitter at @MatthewTMangino.

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