Imposing Lawyer Sanctions in a Post-January 6 World

• Author: Alex B. Long
• Position: Williford Gragg Distinguished Professor of Law, University of Tennessee College of Law
• Pages: 273-308

Imposing Lawyer Sanctions in a Post-January 6

World

ALEX B. LONG*

ABSTRACT

As was the case with the Watergate scandal fifty years ago, the number of

lawyers involved in the efforts to overturn the 2020 election results has raised

questions about the state of ethics within the legal profession. So far, the profes-

sion’s response to the crisis has been to rely on the professional disciplinary

system to address the alleged misconduct of the lawyers involved. This decision

raises a question as to whether the collection of state professional disciplinary

systems are up to the task. The conduct of Jeffrey Clark, the DOJ lawyer who

sought to convince state officials to convene special legislative sessions to

investigate supposed widespread voter fraud, raises particular concerns related

to the disciplinary process as applied to government lawyers. The events sur-

rounding the 2020 election and the January 6 attack on the Capitol provide the

legal profession with an opportunity to take a fresh look at the Standards for

Imposing Lawyer Sanctions and address existing shortcomings. This Article

identifies some of those shortcomings and uses the case of Jeffrey Clark to high-

light some of the Standards’ particular pitfalls as they apply to government law-

yers’ misconduct.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275

I. THE MODEL RULES, THE STANDARDS FOR IMPOSING LAWYER

SANCTIONS, AND THE PURPOSES OF THE LAWYER

DISCIPLINARY SYSTEM .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279

A. THE GOALS OF THE LAWYER DISCIPLINARY SYSTEM

AND THE MODEL RULES . . . . . . . . . . . . . . . . . . . . . . . . . . 280

B. THE ROLE OF LAWYER SANCTIONS IN ADVANCING THE

GOALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281

* Williford Gragg Distinguished Professor of Law, University of Tennessee College of Law. © 2023, Alex

B. Long.

273

II. THE ABA STANDARDS FOR IMPOSING LAWYER SANCTIONS

AND OTHER STANDARDS AT THE STATE LEVEL .. . . . . . . . . . . 283

A. THE ORGANIZATIONAL STRUCTURE OF THE STANDARDS 283

B. APPLICATION OF THE STANDARDS AT THE STATE LEVEL 284

III. THE SHORTCOMINGS OF THE STANDARDS IN GENERAL AND

THEIR IMPACT ON THE PROFESSIONAL DISCIPLINARY SYSTEM 287

A. THE STANDARDS ARE OUTDATED . . . . . . . . . . . . . . . . . . 288

B. THE STANDARDS ARE UNDER-THEORIZED, INCOMPLETE,

AND LACKING IN EXPLANATION . . . . . . . . . . . . . . . . . . . 289

1. THE STANDARDS ARE UNDER-THEORIZED . . . . . . . . . . . . . . 290

2. THE STANDARDS ARE INCOMPLETE . . . . . . . . . . . . . . . . . . 295

3. THE STANDARDS LACK EXPLANATION . . . . . . . . . . . . . . . . 295

C. THE EFFECT OF THESE SHORTCOMINGS ON THE

PROFESSIONAL DISCIPLINARY SYSTEM .. . . . . . . . . . . . . 297

1. THE FAILURE TO ENCOURAGE CONSISTENT TREATMENT . . . . . 297

2. THE FAILURE TO FULFILL THE EXPRESSIVE FUNCTIONS OF THE

PROFESSIONAL DISCIPLINE SYSTEM . . . . . . . . . . . . . . . . . . 298

3. HOW THESE SHORTCOMINGS HAVE FILTERED DOWN TO THE

STATE LEVEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298

IV. THE PARTICULAR SHORTCOMINGS OF THE STANDARDS AND

THE SANCTIONS PROCESS AS APPLIED TO THE 2020

ELECTION: THE ILLUSTRATIVE CASE OF JEFFREY CLARK . . . . 299

A. THE LACK OF UNIFORM ADOPTION OF THE STANDARDS. 299

B. THE CURIOUS CASE OF STANDARDS 5.2 AND 5.21. . . . . . . 300

C. THE FAILURE TO ADDRESS PROSECUTORIAL

MISCONDUCT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303

D. THE INCOMPLETE LIST OF AGGRAVATING FACTORS .. . . 305

CONCLUSION .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307

274 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 36:273

“How in God’s name could so many lawyers get involved in something like

this?”

1

INTRODUCTION

Fifty years ago, the Watergate scandal helped spur the creation not only of new

law school courses devoted to the study of legal ethics, but also of a new set of

ethics rules for the legal profession.

2

One of the features of the scandal that was

most disturbing to members of the profession, and the public at large, was the

number of lawyers—and, in particular, lawyers in government—who were will-

ing to go along with the illegal activities.

3

Thus, the first legal ethics crisis of the

modern age led to major reforms in the professional disciplinary system govern-

ing lawyers, which were designed, in part, to address the public’s image of the

legal profession.

4

The efforts to overturn the 2020 election results represent a new shock to the

legal profession. As with Watergate, the number of lawyers involved in the

efforts to overturn the 2020 election results is remarkable. The most prominent

(Sydney Powell, Rudy Giuliani, Lin Wood, and John Eastman) are either well-

connected lawyers in private practice or, in Eastman’s case, a well-connected

academic. Each of these private lawyers has faced, or is facing, ethics investiga-

tions into their conduct.

5

See generally Debra Cassens Weiss, Sidney Powell Faces Ethics Charges Over Election Litigation; Group Seeks

Discipline Against Other Lawyers, ABA J. (Mar. 9, 2022), https://www.abajournal.com/news/article/sidney-powell-

faces-ethics-charges-over-election-litigation-group-seeks-discipline-against-other-lawyers [https://perma.cc/M3WT-

8JA8] (discussing the ethics complaint against Powell for allegedly filing frivolous lawsuits); In re Giuliani, 146 N.Y.

S.3d 266 (N.Y. App. Div. 2021) (suspending Giuliani from the practice of law); State Bar Announces John Eastman

Ethics Investigation, STATE BAR OF CAL. (Mar. 1, 2022), https://www.calbar.ca.gov/About-Us/News/News-Releases/

state-bar-announces-john-eastman-ethics-investigation [https://perma.cc/B9ZB-K8VN] (noting ethics investigation

into Eastman’s conduct in connection with 2020 election); Randall Chase, Judge Boots Trump Attorney from Carter

Page Defamation Suit, AP NEWS (Jan. 13, 2021), https://apnews.com/article/election-2020-donald-trump-georgia-

wisconsin-lawsuits-840308687a5e8de21c7f50d59f394892 [https://perma.cc/AZP4-KWMZ] (reporting that a Georgia

judge ordered Wood to show cause as to why he should not be removed from representing a client given his attempts

to overturn the 2020 election).

1. Victor Li, Watergate’s Whistleblower: Legal Ethics May Be the Only Surviving Reform, John Dean Tells

Techshow Audience, 100(6) ABA J. 31, 32 (June 2014) (quoting John Dean).

2. See Robert H. Aronson, Professional Responsibility: Education and Enforcement, 51 WASH. L. REV.

273, 273 (1976) (stating that the fallout from the Watergate scandals caused “the American Bar Association,

state and local bar committees, and law schools to seek new ways of educating prospective lawyers with respect

to their ethical duties”); Ted Schneyer, Professionalism as Bar Politics: The Making of the Model Rules of

Professional Conduct, 14 LAW & SOC. INQUIRY 677, 688 (1989) (discussing how the Model Rules of

Professional Conduct developed from “a felt need to shore up the profession’s public image in the wake of the

Watergate scandal”).

3. See Donald T. Weckstein, Watergate and the Law Schools, 12 SAN DIEGO L. REV. 261, 261 (1975) (“It is

unfortunately true that approximately half of the individuals indicted or convicted for Watergate-related crimes

are lawyers.”); Schneyer, supra note 2, at 688 (linking the decline in the public’s image of lawyers following

the scandal to the number of lawyers involved in the scandal).

4. See Schneyer, supra note 2, at 688.

5.

2023] IMPOSING LAWYER SANCTIONS IN A POST-JANUARY 6 WORLD 275