Ethics. Questionable Claims
| Author | David L. Hudson Jr. |
| Pages | 32-33 |
ETHICS
Questionable Claims
Election fraud cases highlight ethics rules on baseless complaints
BY DAVID L. HUDSON JR.
Lawyers have ethical obliga-
tions to consider before sign-
ing their names to pleadings,
because their signatures repre-
sent that there needs to be a factual and
legal predicate for the claims. This duty
has come into full focus with a spate
of lawsuits led by President Donald
Trump-allied lawyers who alleged fraud
during the 2020 presidential election.
These cases were almost universally
rejected by the courts and prompted
complaints against the attorneys who
led the lawsuits, urging sanctions and
even law license suspensions.
But it isn’t just the high-prole,
high-stakes suits that trigger ethical
obligations.
When a lawyer les an action based
on an unfounded legal theory, he
or she could be subject to sanctions
or disciplinary action ranging up to
disbarment. Experts say lawyers have
a duty to investigate whether their
clients’ accusations have support or are
without merit.
“Lawyers have to make a
reasonable inquiry to determine
that there is evidence support-
ing their factual allegations
under Rule 11” of the Fed-
eral Rules of Civil Pro-
cedure or a state equiv-
alent, says University of
Connecticut law professor
Leslie Levin, who writes reg-
ularly on ethics issues. “How
much factual investigation the
lawyer needs to do depends on
the circumstances, but the lawyer
usually can’t just take the client’s word
for it that the allegations the client is
making are true.”
Checking frivolous claims
As ofcers of the court, lawyers have
an obligation to bring meritorious
claims and are subject to disciplinary
action for violating rules of professional
responsibility.
Rule 3.1 of the ABA Model Rules
of Professional Conduct provides:
“A lawyer shall not bring or defend a
proceeding, or assert or controvert an
issue therein, unless there is a basis in
law and fact for doing so that is not
frivolous, which includes a good-faith
argument for an extension, modica-
tion or reversal of existing law.”
However, legal observers say Rule
3.1 is not frequently enforced. But
according to professor Peter A. Joy of
Washington University School of Law,
there are other ethics rules that come
into play when a pleading is unsupport-
ed by evidence, including Rules 4.1,
5.1(b), 8.4(a) and 8.4(c).
Rule 4.1 states that lawyers must not
make false statements to third parties.
Rule 5.1(b) requires lawyers with su-
pervisory authority over other lawyers
to make sure those lawyers act consis-
tently with ethical rules. Rule 8.4(a)
identies it as professional misconduct
to assist or induce another attorney to
violate the rules, while 8.4(c) says it is
professional misconduct to “engage in
conduct involving dishonesty, fraud,
deceit or misrepresentation.”
Levin notes that in addition, lawyers
who engage in such conduct “may be
subject to civil claims for
abuse of process or vexa-
tious litigation.”
According to ethics
experts, the most
common source
of punishment
for lawyers who
le claims deemed
nonmeritorious are
court sanctions. In feder-
al court, lawyers who le
litigation that seems to lack
a factual and legal predicate
are often sanctioned under Rule 11.
“It does start with Rule 11 because
when you sign the complaint, you are
saying that the claims or defenses are
warranted by existing law and that you
have evidentiary support for your factu-
al contentions,” Joy explains, noting
most states have modeled their ethical
rules after Rule 11.
Rule 11(b) of the Federal Rules of
Civil Procedure provides that when
an attorney signs pleadings “after an
Photo illustration by Brenan Sharp/ABA Journal; photo courtesy of the University of Connecticut
Leslie Levin
ABA JOURNAL | APRIL–MAY 2021
32
Practice Matters | ETHICS
ABAJ AP -MAY Pr c c M rs AM
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