Every year, incoming first-year law students are told a simple truth: You can sue anyone at any time for anything, anywhere.
That does not mean you will win. And it does not mean doing so is always consistent with a lawyer’s ethical and professional obligations. Some of the lawyers at the firms handling the litigation work for President Donald Trump’s campaign or related Republican Party organizations are now raising concerns internally about the legitimacy and purpose of the legal claims they are currently being asked to advance. These concerns have merit: Lawyers have ongoing obligations to adhere to the ethical requirements of the state bars through which they are licensed, as well as the relevant rules of the court(s) before which they are practicing. Trump may not have to worry about keeping a job after January 20, 2021, but the lawyers doing his bidding at the moment certainly do.
The wave of quixotic lawsuits flying out of Trump’s legal team is stretching the boundaries of anything remotely resembling a coherent and evidence-based approach to litigation. In the mere eight days since Election Day, the Trump campaign has filed at least 10 different lawsuits in at least five different states (Michigan, Pennsylvania, Arizona, Georgia, and Nevada). Some of these are run-of-the-mill lawsuits fighting over minor issues, but several directly allege fraud, and a few include documentation claiming to prove the existence of that fraud.
To date, not a single one of these lawsuits alleging fraud has gone anywhere. One lawsuit relied on what the court politely suggested was “vague hearsay.” Another suggested that the use of Sharpies on ballots had made those ballots invalid. That lawsuit was dropped before the court could even rule on it. A third claimed election officials were not properly ensuring mail-in ballots that arrived after a state-mandated deadline were being excluded from the ballot tabulation. A state court judge threw that lawsuit out after finding there was “no evidence” indicating the allegations were correct.
Other allegations claim that individuals who are deceased or no longer living in the relevant state nonetheless voted in the 2020 election. Even cursory investigative reporting into these claims has found that the former is largely due to clerical errors with respect to birth dates, and the latter is due in no small part to military personnel lawfully claiming residency in a state distinct from that in which they are currently stationed under military orders.
The coup de grace is a recently filed lawsuit seeking to throw out the entirety of the mail-in-ballot count in Pennsylvania, dubiously claiming with little to no evidence that verification safeguards were insufficiently applied to mail-in ballots and that the entire system was ultimately unconstitutional. Virtually every objective legal analyst has deemed that lawsuit to be dead on arrival. And that is a good indication that any lawyer worth his or her salt should have stayed far, far away from it.
Rule 3.1 of the American Bar Association’s Model Rules of Professional Conduct—upon which most state bars rely at least in part—stipulates that a lawyer shall not bring an action unless a basis exists in law and fact for doing so. This rule implies that lawyers must do due diligence to inform themselves of the facts of the case and reasonably determine that a good-faith argument can be made in defense of the client’s legal claim. Rule 11(b) of the Federal Rules of Civil Procedure—many of which are designed to serve as “gatekeepers” against frivolous lawsuits—requires lawyers to ensure that their arguments are not frivolous, and that factual contentions either have or are reasonably likely to have evidentiary support. Although the courts do not often exercise their discretion to enforce it, Rule 11(c) provides judges with the authority to impose sanctions against lawyers who have violated Rule 11(b).
These due-diligence obligations are of particular importance in the cases Trump and his team are now litigating. Rule 9(b) of the Federal Rules identifies certain “special matters” that must be pled with greater specificity and are thus subject to what courts call “heightened scrutiny.” One of these matters is fraud: “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake” (italics added). More than one court has held that the “heightened scrutiny” Rule 9(b) requires also applies to claims of election fraud.
But what does “with particularity” actually mean? In simple terms, a plaintiff alleging fraud must describe the “who, what, when, where, and how” of the alleged fraud. Vague allegations of misconduct—especially those based on hearsay (governed under Federal Rule of Evidence 802)—will often meet their end against the edge of Rule 9(b)’s blade. And it looks like the Trump team’s lawsuits are not faring any better.
We can assume that Trump’s lawyers are not incompetent, which leads to the question: If they know these lawsuits are unlikely to stick, why are they filing them? The ethical dilemma confronting these lawyers is greater than merely making their billable-hours quota and continuing their advancement in their firms. The deeper they venture down the Trump conspiracy rabbit hole, armed with nothing more than futile lawsuits premised on flimsy evidentiary or legal bases, the more their professional reputations and law licenses are at risk.
This was a stinging lesson for Trump’s former personal attorney Michael Cohen, who went to jail for committing campaign-finance felonies to protect his client in the days leading up to the 2016 election. Cohen’s current predicament, and the seemingly incremental steps he took to arrive there, serves as a perfect example of a lawyer crossing the line and not knowing when to refuse a client’s demands. Even the most zealous advocate for a client should not violate ethical or legal obligations merely to advance a client’s interests.
Every individual has the right to hire the lawyer of his preference and choosing, subject to financial and ethical limitations. No individual has the right to require his lawyer to risk her professional career to assuage that person’s bruised ego. Indeed, lawyers are ethically bound to terminate representation of a client if continued representation would result in the lawyer violating the rules of professional conduct (such as Rule 3.1) or other laws.
Recognizing how close you can get to the line before you topple over it is something that each of the members of the Trump campaign’s outside legal team should be carefully considering these days. Their continued ability to be licensed attorneys might ultimately depend on it.