One question that has arisen is whether there will be any serious professional consequences for Trump’s legal team repeatedly making baseless claims that they cannot stand up in court. Jan Wolfe has looked at this for Reuters and the answer is probably not.
Rep. Bill Pascrell on Friday called for Rudy Giuliani and other members of Trump’s legal team to be stripped of their law licenses for bringing “frivolous” lawsuits, but legal ethics experts say attorney discipline is relatively rare, especially in politically charged disputes.
All 50 states and the District of Columbia have legal ethics rules for lawyers that are derived from standards published by the American Bar Association.
One ABA rule says that lawyers should only assert a claim in court if “there is a basis in law and fact for doing so that is not frivolous.” Separately, there are rules prohibiting lawyers from making false statements to third parties and engaging in deceitful conduct.
Giuliani has repeatedly made unsubstantiated claims in press conferences and media appearances about electoral fraud.
During a 17 November court hearing, he initially told a judge in Pennsylvania that the election had been marred by fraud. But under questioning by Judge Matthew Brann, Giuliani backed away from this unproven claim, acknowledging that “this is not a fraud case.”
Other members of the Trump legal team have generally made narrower allegations in court. Viviane Scott, a lawyer at Frankfurt Kurnit Klein & Selz in New York, said there is a reason for this dissonance between what the campaign says in and out of courtrooms.
“We, as lawyers, are officers of the court,” said Scott. “We’re under an obligation make statements that have a basis in truth.”
On Twitter and in media appearances, Giuliani and attorney Sidney Powell appeared to have run afoul of rules barring them from making dishonest statements, said Brian Faughnan, a lawyer and ethics specialist in Tennessee. The Trump campaign has since said that Powell is no longer representing it.
Faughnan said Giuliani acted unethically by tweeting on 22 November that there were “PHANTOM VOTERS” in the Detroit area. That tweet appeared to reference a sworn statement by a cybersecurity analyst, submitted in court, that had a major error: it confused data from Minnesota with data from Michigan.
Two days previously, the lawyer who filed the affidavit, Lin Wood, conceded that it was mistaken and needed to be corrected.
Giuliani either knew his tweet was false, or reasonably should have known it was false, Faughnan said. “By the time he tweeted that, the screw-up had been publicly discussed,” Faughnan said. President Donald Trump has also subsequently spread this erroneous affidavit on social media.
Despite these apparent ethical lapses, Faughnan said he did not expect action against Giuliani and Powell. Faughnan said investigators have limited resources, and will focus on more straightforward violations such as lawyers who steal from clients.
Faughnan said investigators would also be wary of disciplining lawyers when its about politics. “When it is a very politically charged case, you know the first line of defense is going to be ‘you are only doing this to us because of our politics,’” said Faughnan.