How far can attorneys go?

Dear Readers,

Attorneys are often not held in the highest regard. We represent someone and can be tasked with some pretty undesirable chores, as we are only “mouthpieces.” We are often accused of having no morals, no ethics. You need to look no further than Michael Avennatti sentenced to prison for extortion and Michael Cohen going there too for a variety of schemes.

Attorneys are granted the privilege of practicing law in a particular state by applying for a bar license with its bar association, of which that state’s highest court judges fitness to practice law. In conjunction taking a bar examination, we also have to pass a national ethical exam. Its not all that difficult, still, it is a requirement. Once a member of a state’s bar association, we can ask to practice in various appellate courts in that state, as well as seeking membership in sister states and in the parallel federal courts.

In state courts, this license can be revoked (we call this being disbarred) or suspended by a state’s bar as sanctioned by the highest court; in the federal court’s its down in each district or appellate court in their own independent action. Once disciplined in one state, you usually suffer the same fate elsewhere.

A referral for discipline is typical made by a judge or layperson, as opposed to a fellow attorney. A referral is sent to the enforcement arm of the bar for investigation, at the end of which recommendations for discipline are made to the highest court. At this point, an attorney can ask for a contested hearing, waive a hearing, or negotiate a reduced discipline.

Attorneys don’t necessarily fall into the level of criminal conduct perpetrated by Avennatti and Cohen, however, there is a whole host of possible ethical and professional failings that can threaten a bar license. In Georgia, attorneys are governed by a code called Georgia Rules of Professional Conduct. It is like a criminal code that can garner all kinds of possible disciplines from a reprimand to disbarment. You can run afoul of conflict of interests, communication with client rules, act unprofessionally, and financial abuses, which might or might not be a crime.

Court conduct can be unethical or unprofessional. We are “officers of the court” and held to an ethical standard of candor with the court. When we are making arguments in front of a judge, we are required to inform her or him of case law or statutes harming a position we advocate.

We also have to be careful about the “spin” we give to a court proceeding in statements to the public. We can’t obfuscate case facts in trying to convince the public a court’s decision is wrong.

This makes perjury a particularly pretty sticky wicket for an attorney, as if we know a client is lying, we cannot question the client on the witness stand. “Suborning perjury” is when we call a witness to testify, question a lying witness, and we are “vouching” for the truth of the witness’ false testimony. It is easy enough not to call a witness we know is lying, however, you can’t stop a client from testifying. All we can do is have the judge (not us) swear the witness in, ask the witness their name, and ask what they wanted to say. Nothing more, nothing less.

An attorney who commits perjury or publicly lies might as well kiss the law license good-bye. Disbarment is at the end of the yellow brick road – just ask Bill Clinton. Lawyers, even though we can “spin” facts or try to artfully persuade on behalf of a client can’t tell lies.

It is highly unusual for a Court to impose an interim discipline without an investigation. There is due process and the formalities are almost always followed.

Which brings me to what is going with some “Trump” lawyers, following the litigation that was filed to try and stop the certification of the Presidential vote in various states. There is a “steal” myth that there was organized vote fraud in enough quantity that the election results from the November 2020 vote is fraudulent. Even if you believe it happened (it did not), such a concept threatens the very sanctity of our election. If we can’t have a free and fair election, we might as well stop voting.

This requires you to come to court with some serious evidence. There is a reasonable fact check that judges apply to court filings. In the case of these election lawsuits claims of fraud were made in court filings, but with affidavits attached as supporting data to bolster the allegations. Except that none of the attorneys vetted them for truthfulness. They were clearly fanciful nonsense, so the pleadings were without factual justification. Worse, some of the allegations in the pleadings are blatantly lies.

In federal court this is a problem due to something called Rule 11. An attorney who files a pleading bereft of factual content is subject to sanction. This can be in the form of financial penalty, paying the other side’s attorney fees, or worse, because federal judges are so independent and appointed for life, referral to a state bar for an ethical investigation.

The consequence is the Trump attorneys have had to hire their own attorneys to try and fend off sanctions in different jurisdictions. What we see is many are trying to minimize their involvement in the pleadings. In Michigan, one attorney said she barely worked on the pleading and L. Lin Wood said that, while his name was on the pleading, he never saw it before it was filed. Sidney Powell, perhaps the main instigator, tries to suggest that this is all overblown political gamesmanship.

It’s not. As Rudy Giuluani has learned, an attorney can torch a bar license, by straying from an acceptable semi-truthful path. Attorneys who act as publicists and not as officers of the court, can attract the ire of a judge. While Facebook may decimate filth, attorneys can’t do that — it turns out the truth does matter.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami. Owner of Rockefeller Law Center, Jim has been in private practice since 2000. E-mail your comments or confidential legal questions to jim@rockefellerlawcenter.com.

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