First Amendment and the Rule of Law: Lawyers and Their Duty to Democracy

• Author: Claris Park
• Position: J.D., Georgetown University Law Center (expected May 2023); B.A., University of Pennsylvania (2017)
• Pages: 1039-1055

First Amendment and the Rule of Law: Lawyers

and Their Duty to Democracy

CLARIS PARK*

INTRODUCTION

Courts have long protected attorneys’ First Amendment rights, although

“speech by an attorney is subject to greater regulation than speech by others” and

can be limited if it would significantly affect judicial proceedings.

1

Because law-

yers are obligated to be zealous advocates for their clients, they may brush against

and test that limit.

2

This can happen both within and outside of judicial proceed-

ings, such as when attorneys speak publicly on behalf of their clients or engage in

speech and conduct that the lawyer normally would not outside of their advocacy

for their client.

However, in 2020 and 2021, multiple lawyers were sued for defamation, repri-

manded, sanctioned, and in one instance, suspended from the bar for their state-

ments related to the 2020 elections and former President Donald Trump’s claims

that the election was rigged.

3

Alison Durkee, With Giuliani’s Law License Suspended, Here Are the Other Trump Lawyers Who May

Face Discipline Next, FORBES (June 24, 2021), https://www.forbes.com/sites/alisondurkee/2021/06/24/with-

giulianis-law-license-suspended-heres-the-other-trump-lawyers-who-may-face-discipline-next/?sh=4d74727213b3

[https://perma.cc/9BAE-YXTL].

Court filings and opinions repeatedly raised con-

cerns that the lawyers may have jeopardized national security, public faith in U.S.

democracy, and respect for and promotion of the rule of law. What, if any, conse-

quences can lawyers expect to face when their zealous advocacy perpetuates fur-

ther, broader, unquantifiable harm to the justice system?

This Note will argue that while previous frameworks have been appropriately

hesitant to infringe on the First Amendment rights of lawyers, any future tests

determining whether a lawyer’s conduct is protected by the First Amendment

must incorporate a robustly informed evaluation of harm to public faith in the jus-

tice system. This is necessary not just to discipline attorneys acting in bad faith,

but also to protect attorneys’ speech and to hold attorneys to their ethical obliga-

tion of furthering public trust in the rule of law.

Part I discusses the conduct of lawyers who defended President Trump’s alle-

gations of election fraud and the legal actions taken against them by various

* J.D., Georgetown University Law Center (expected May 2023); B.A., University of Pennsylvania (2017)

© 2022, Claris Park.

1. Gentile v. State Bar of Nev., 501 U.S. 1030, 1051 (1991).

2. MODEL RULES OF PROF’L CONDUCT R. 1.3 (2016) [hereinafter MODEL RULES]

3.

1039

parties. This section particularly focuses on the conduct of and actions taken

against Rudy Giuliani and Sidney Powell. Part II gives a general overview of the

relevant current framework used to determine whether the First Amendment pro-

tects a lawyer’s conduct. Part III briefly explains the obligations of lawyers under

the current Model Rules of Professional Conduct. Part IV proposes an amended

framework by which to determine whether a lawyer’s conduct is protected by the

First Amendment. This framework is then applied to Sidney Powell’s speech and

conduct in Part V.

I. 2020 ELECTION

Following the 2020 elections, former President Trump and his supporters

asserted that the election was fraudulent and that President Trump was rightfully

and legally the re-elected President of the United States.

4

David A. Fahrenthold, Emma Brown & Hannah Knowles, Trump Lost at the Ballot Box. His Legal

Challenges Aren’t Going Any Better, W

ASH. POST (Nov. 14, 2020), https://www.washingtonpost.com/politics/

trump-election-legal-challenges/2020/11/14/904fbd04-25e2-11eb-a688-5298ad5d580a_story.html [https://perma.

cc/2M9G-B2ZT].

President Trump’s sup-

porters quickly filed more than sixty lawsuits in Arizona, Georgia, Michigan,

Nevada, and Pennsylvania.

5

Amy Sherman & Miriam Valverde, Joe Biden Is Right That More Than 60 of Trump’s Election Lawsuits

Lacked Merit, POLITIFACT (Jan. 8, 2021), https://www.politifact.com/factchecks/2021/jan/08/joe-biden/joe-

biden-right-more-60-trumps-election-lawsuits-l/ [https://perma.cc/KJW2-Q8UW].

While the majority of these lawsuits were dismissed

within a month of the election, support for President Trump and his alleged claim

to the presidency remained consistent.

6

Reuters Staff, Fact Check: Courts Have Dismissed Multiple Lawsuits of Alleged Electoral Fraud

Presented by Trump Campaign, REUTERS (Feb. 15, 2021), https://www.reuters.com/article/uk-factcheck-

courts-election/fact-check-courts-have-dismissed-multiple-lawsuits-of-alleged-electoral-fraud-presented-by-trump-

campaign-idUSKBN2AF1G1 [https://perma.cc/Q3GU-ZDPL].

This ultimately culminated in an attack

on the Capitol on January 6, 2021, during which President Trump’s supporters

hoped to disrupt the formal counting of electoral votes by a joint session of

Congress, which would have affirmed then President-elect Joe Biden’s victory.

7

Josiah Ryan, Congress Affirms Biden’s Electoral College Victory, CNN (Jan. 7, 2021), https://www.cnn.

com/politics/live-news/congress-electoral-college-vote-count-2021/index.html [https://perma.cc/6M7G-PQGV].

The Capitol was evacuated, resulting in harrowing images of congressmen

fleeing and aides crouching down within the chambers to take shelter while indi-

viduals broke windows and crushed Capitol police officers to gain access to the

building. Four people died in the attack, and 140 Capitol police officers were

assaulted.

8

The Attack, WASH. POST (Oct. 31, 2021), https://www.washingtonpost.com/politics/interactive/2021/jan-

6-insurrection-capitol/ [https://perma.cc/H4X2-THUB]; Amy Gardner & Rosalind S. Helderman, The Attack:

After: Contagion, WASH. POST (Oct. 31, 2021), https://www.washingtonpost.com/politics/interactive/2021/jan-

6-insurrection-capitol/ [https://perma.cc/H4X2-THUB].

In the next weeks, four Capitol police officers who responded to the

attack committed suicide.

9

Tim Fitzsimons, Geoff Bennett & Phil Helsel, Four Officers Who Responded to Capitol Riot Have Died

by Suicide, NBC NEWS (Aug. 2, 2021), https://www.nbcnews.com/news/us-news/third-d-c-ofcer-who-responded-

capitol-riot-dies-suicide-n1275740 [https://perma.cc/2LCV-MP6F].

On October 12, 2021, the Department of Justice

4.

5.

6.

7.

8.

9.

1040 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 35:1039