(Editor’s Note: Extended excerpts of the various legal proceedings cited in this piece can be read here.)
In 2017, former President Donald Trump directed his White House Counsel Don McGahn to pressure then-Attorney General Jeff Sessions to avoid recusing himself from overseeing the Department of Justice’s investigation of Russian interference in the 2016 presidential election. When McGahn failed and Sessions appointed Special Counsel Robert Mueller, Trump reportedly “erupted in anger” and asked, “Where’s my Roy Cohn?”
Decades earlier, Roy Cohn had served as a legal aide to Wisconsin Senator Joseph McCarthy in the Red Scare probes of the 1950s, then served as Trump’s personal lawyer in the 1980s. Michael Cohen filled that same role from 2006-2018, but, as he eventually discovered, representing Trump can be a professionally risky business: Cohen was disbarred in 2019 for making false statements to Congress concerning Trump’s business activities in Russia.
However, the professional sanctions Cohen suffered have not deterred other lawyers from serving as counsel to Trump – and exposing themselves to similar professional and legal risks for representing him in election challenges in the wake of the 2020 Presidential election and in other litigation. Because Trump has supported and encouraged legal arguments and undertakings that have little factual support or legal viability, this latest generation of Trump lawyers – including the 22 discussed here – faces sanctions in litigation, criminal prosecutions, and state bar disciplinary proceedings regulators . This cohort includes well-known figures such as Jeffrey Clark, John Eastman, Jenna Ellis, Rudy Giuliani, Sidney Powell, and L. Lin Wood, but also relatively unknown lawyers.
The allegations and admissions of professional misconduct and criminal conduct by the Trump lawyers in these election challenges and other litigation, coupled with examination of their professional profiles, state Rules of Professional Conduct, the American Bar Association’s Model Rules of Professional Conduct, and data on discipline of attorneys suggest that market incentives and structural weaknesses in current legal education and in the practice environment might encourage or, at least, leave ample room for misconduct.
The Cohort of Trump Lawyers
We have identified 22 lawyers who formally appear in cases on behalf of Trump or who apparently have worked independently on behalf of his false assertion that he won the 2020 election. The lawyers are Robert Cheeley, Kenneth Chesebro, Jeffrey Clark, Matthew DePerno, John Eastman, Jenna Ellis, Michael Farina, Rudy Giuliani, Julia Haller, Scott Hagerstrom, Brandon Johnson, Stephanie Juntilla, Christopher M. Kise, Howard Kleinhendler, Michael Madaio, Armen Morian, Emily Newman, Sidney Powell, Clifford S. Robert, Gregory J. Rohl, Ray Smith, and L. Lin Wood.
In this review, we use several sources for the cohort: (1) the civil business-fraud case brought against Trump, his family members, and his businesses by the New York Attorney General; (2) the 2020 “Kraken” King v. Whitmer case, the litigation in Michigan contesting the 2020 presidential election results brought on behalf of Republican voters and electoral college nominees; and (3) ensuing discipline, sanctions, and indictments in states from California to New York. (We selected this short list of proceedings because pertinent documents from them are readily accessible and because they include the lead lawyers of much of Trump’s election-related litigation and of the significant business-fraud litigation in New York: these lawyers engaged in much of the alleged or admitted unprofessional conduct we examine .)
At the state and federal levels, the professional conduct of these lawyers is or has been at issue in disciplinary proceedings, in proceedings for sanctions, or is serving as a factual predicate for their criminal prosecutions. It is possible that these attorneys or others may face similar exposure in additional proceedings, but the proceedings reviewed here illuminate some of the risks of representing Trump and other clients who advance spurious factual and legal claims regarding the 2020 presidential election.
Wood surrendered his license in Georgia, reportedly in exchange for dismissal of disciplinary proceedings against him.
- Disciplinary proceedings in Michigan were initiated against Rohl, Hagerstrom, Juntilla, Haller, Johnson, Powell, Newman, Kleinhendler, and Wood. Juntilla and Newman reportedly have been dismissed from the proceeding, presumably because sanctions imposed on them by the District Court in King v. Whitmer were reversed by the Sixth Circuit Court of Appeals. (The Michigan disciplinary action against attorneys not licensed in Michigan is grounded in the State’s “long-arm” ethics rule 8.5(a) and the federal district court’s local rule 83.20(j).)
- Pending further proceedings, Giuliani has been suspended from practicing in the state of New York for his work on behalf of Trump. In the District of Columbia, the Board On Professional Responsibility has recommended his disbarment.
- Clark is the respondent to disciplinary proceedings in the District of Columbia.
- Eastman is the respondent in disciplinary proceedings in California for his participation in efforts to prevent the certification of the presidential election.
- Ellis has been censured by the Colorado Bar for her false public statements (“misrepresentations”) on behalf of Trump about purported election fraud in 2020.
- Disciplinary proceedings in Texas against Sidney Powell were dismissed, but the dismissal is reportedly on appeal.
- Nine attorneys were sanctioned by the U.S. District Court (Eastern District of Michigan) in the King v. Whitmer litigation; sanctions against six of the attorneys were completely affirmed recently by a panel of the federal Sixth Circuit Court of Appeals. (The District Court imposed sanctions on Haller, Hagerstrom, Johnson, Juntilla, Kleinhendler, Newman, Powell, Rohl, and Wood. The Sixth Circuit panel reversed and vacated sanctions awards against Juntilla and Newman because their involvement in the case was de minimis or otherwise unexceptionable; the appellate panel reduced the District Court’s fee award against Wood but did not entirely eliminate it.)
- In the ongoing lawsuit brought by the New York Attorney General against the Trump Organization and its officers and employees for property-valuation fraud, the presiding judge recently sanctioned five of Trump’s attorneys (Farina, Kise, Madaio, Morian, and Robert) for “frivolous motion practice.” Specifically, the five sanctioned attorneys renewed arguments for a third time that the judge had rejected twice and on which the judge had been affirmed twice on interlocutory review by the State’s intermediate appellate court.
- Cheeley, Chesebro, Clark, Giuliani, Eastman, Ellis, Powell, and Smith have been indicted in Georgia for their alleged attempts to overturn the 2020 presidential election results in Georgia, including allegedly illegal attempts to access voting equipment. Excepting Ellis, the charges for each of the lawyers in the Georgia indictment include at least one charge of “false statements or writings” or “conspiracy to commit false statements or writings.”
- DePerno and Juntilla reportedly have been indicted in Michigan for “allegedly attempting to access and tamper with voting tabulators” in one Michigan county.
- The allegations in the Special Counsel Jack Smith’s indictment of Trump in the District of Columbia for his participation in attempts to prevent certification of the 2020 election results indicate that at least five of the unnamed unindicted co-conspirators in that case are lawyers. They appear to be Chesebro, Clark, Eastman, Giuliani, and Powell, who are already included here because of other proceedings by or against them.
- Ellis has pleaded guilty in the Georgia election interference case to one felony charge of aiding and abetting false statements and writings.
- Kenneth Chesebro has pleaded guilty in the Georgia election interference case to one felony count of conspiracy to commit filing false documents.
- Powell has pleaded guilty to six misdemeanor counts of conspiracy to commit intentional interference with the performance of election duties in the Georgia election interference case.
Of course, none of this inherently implies the guilt or liability of any party who has not yet pled out, been convicted, or found civilly liable for misconduct. All of the indicted lawyers are entitled to the presumption of innocence unless and until they are found guilty or plead guilty; the disciplinary proceedings against Clark, Eastman, Giuliani, Powell and the six lawyers still in proceedings in Michigan are ongoing, and there has been no final disposition of their cases and they may yet be cleared of those charges; and finally, the recent sanctions by the trial judge in the New York fraud case are on appeal.
A Framework for Assessing Misconduct
That said, it is astounding that so many lawyers have exposed themselves to sanctions, discipline, and criminal indictment for their work on behalf of Trump. The American Bar Association’s Model Rules of Professional Conduct provide a helpful framework to assess their conduct. Most states have adopted the Model Rules in whole or in substantial part. The actual state ethics provisions cited as the basis for discipline invoke or echo the language of the Model Code of Conduct. (The disciplinary proceedings we cite here invoke the state equivalents of the Model Code’s provisions.)
The Preamble to the Model Rules delineates the unique, multi-faceted role lawyers play in our system as “a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.”
The Preamble also highlights lawyers’ normative obligations:
…a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. (Emphasis added.)
The last point in the Preamble is especially pertinent here: based on their conduct in the litigation and the other events described here – especially the frivolous and unsuccessful election challenges – it’s arguable that these lawyers have undermined popular support for constitutional democracy at a foundational level. Notwithstanding the nearly complete failure of all of these election-fraud lawsuits, a large percentage of the public believes the 2020 election results to be the product of fraud. One could say that the public’s misapprehensions of fraud in the 2020 results are themselves the product of fraud – on and in the courts and in other public fora, accomplished by this set of lawyers, among other people.
The indictments, disciplinary charges, opinions, and orders, and the judicial opinions imposing sanctions indicate that the most relevant Model Rules are 3.1 (“Meritorious Claims and Contentions”), 3.3 (“Candor Towards the Tribunal”), 4.1 (“Truthfulness in Statements to Others”), and 8.4 (“Misconduct”). Also, as noted above, Michigan has invoked its long-arm ethics rule and the Eastern District’s local rule as the basis for jurisdiction over out-of-state attorneys admitted pro hac vice for the election litigation in Michigan.
Rule 3.1 states in part that, “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, modification or reversal of existing law.”
Rule 3.3 has two pertinent sub-sections: 3.3(a)(1) and (a)(3): “(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;…(3) offer evidence that the lawyer knows to be false.”
Rule 4.1 states that, “In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person;…”
Rule 8.4 has two relevant sub-sections: ““It is professional misconduct for a lawyer to…(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;” and “(d) engage in conduct that is prejudicial to the administration of justice…”
One or more of these sections or their state equivalents appear to be at issue in all of these proceedings. The conduct that led these lawyers into conflict with courts and regulatory agencies that investigate and sanction attorneys for unprofessional behavior can be summarized in five categories:
- submitting legally frivolous and factually baseless claims about election fraud to courts, legislatures, and legislative officers;
- making false statements to the media and other public audiences about the 2020 presidential election
- illegally accessing voting-machines and voting software;
- devising or assisting the false-elector scheme to delay or defeat Congressional certification of Joe Biden as the winner of the 2020 presidential election; and
- making frivolous legal arguments in the New York fraud investigation, and then renewing them, after they have been twice rejected by the presiding judge, and the rejection of the arguments has been twice affirmed on appeal.
The false statements in the election litigation, to legislative leaders and bodies, and to, the media and public have focused on allegations of election officials abusing ballot-audits and ballot-challenge processes, violating absentee and mail-in ballot procedures, allowing ineligible persons to vote (including non-citizens, felons, and under-aged and deceased persons), and using voting machine technology that purportedly could be hacked to transfer votes for Trump to Biden, or to double-or triple-count votes for Biden). These false statements in turn served as the basis of many of the 40-plus unsuccessful lawsuits filed on behalf of Trump to challenge or overturn officially certified election results chiefly in several states, including Arizona, Georgia, Michigan, and Pennsylvania.
Not all of the lawyers under scrutiny have engaged in every one of these five kinds of alleged misconduct. It appears, however, that several of the attorneys have engaged in more than one type of sanctionable, unprofessional, or illegal conduct. It is impossible to determine whether repeated misconduct in multiple contexts indicates a “bad-apple” problem or larger, structural problems in the profession or the market-signals to the profession.
Expanding Ethical Guardrails and Controls in the Legal Profession
We do not know what motivates these attorneys to jeopardize their licenses and, perhaps, their liberty, by representing Trump. However, we can make some reasonable inferences about causes of their behavior based on research of lawyers who have faced discipline. For example, a recent study of discipline and disbarments by Northwestern University law professor Kyle Rozema found that “…disciplined lawyers are not representative of the legal profession in terms of the type of law firms they work for and their practice areas…disciplined lawyers are more likely to subsequently end up in law firms with limited oversight and in practice areas with unsophisticated clients.“ (Emphasis added.) Moreover, according to the Rozema study, “…solo practitioners make up 30 percent of the legal profession but receive 56 percent of disciplinary measures, and lawyers at large law firms make up 10 percent of the profession but receive only 2 percent of disciplinary measures.” (Emphasis added.)
Rozema’s findings are consistent with a body of research developed in the United States and elsewhere on this subject, dating back at least to the early 1990s, which is reviewed here. Perhaps these solo practitioners and small-firm lawyers practice without adequate supervision or peer-review. The relatively recent and limited infusion of mandatory ethical training in law school curricula and bar admission and CLE requirements may be insufficient to deter lawyers from unethical conduct in practice. The recurrence of these findings about solo practitioners and small-firm lawyers suggests that the responses here and abroad have not been effective in preventing such misconduct.
Most of the attorneys involved in the election litigation considered here are in solo practices or small firms (2-6 lawyers). Setting aside L. Lin Wood (who has already surrendered his license) and Rudy Giuliani, John Eastman, and Jeffrey Clark (who are not in conventional private practices), searches on LinkedIn and law-firm websites reveal that 11 of the 22 lawyers discussed here appear to be solo practitioners (Cheeley, Chesebro, DePerno, Ellis, Haller, Hagerstrom, Juntilla, Kleinhendler, Morian, Powell, and Rohl). Four lawyers work in small practices with six or fewer lawyers (Farina, Madaio, Robert, and Smith). The largest firm-affiliation we found is for one lawyer who is of counsel to a firm with 16 lawyers (Kise). (Neither LinkedIn nor web-searches provided clear identifications, professional histories, and current affiliations of two lawyers included here, Johnson and Newman.)
Correlation is not causation, of course. Lawyers who begin or end their careers in small firms or solo practices are not inherently or predictably unprofessional; similarly, lawyers in large public or private practices are not inherently or predictably professional. A 1998 study comprising interviews of litigators at large firms and their adversaries suggest that unethical practices can occur in any kind of law-firm environment.
However, during our long experience in public-sector and public-interest careers, we have observed that legal practices invested in their reputations among professional peers and staffed by lawyers who continuously challenge each other on the form, substance, and process of their work – in other words, collegial peer pressure – can keep lawyers attentive to ethics issues.
For example, in the City of Chicago’s law department where one of us worked for more than two decades, lawyers in a specialized division could, and were often encouraged or directed to, consult or partner with lawyers in other divisions where the work traversed more than one subject matter.
Lawyers who work alone – or with few colleagues with whom they interact regularly – can lack that kind of immersive, ongoing, multilateral and knowledgeable peer experience. Also, the daily pressures of keeping a law practice solvent can be harsh when only one person, or a handful of people, are responsible for keeping the lights on. Lawyers can make bad choices for financial reasons, just like other people who own businesses.
The last point – and the sheer size of the cohort here – also suggests that something is deeply wrong in the incentive and disincentive structure and the market-signals to lawyers in campaign and election litigation, where the stakes are high for politicians and their lawyers.
A great deal of money – including dark money that comes from 501(c)(4) “social welfare groups” or 501(c)(6) “trade associations” that is shielded from campaign disclosure laws – flows into the intersection of law and politics. This flood of money was spurred primarily by the Supreme Court’s decision in Citizens United v. FEC, which allowed corporations and other groups to spend unlimited amounts of money on political campaigns and candidates, and subsequent decisions such as McCutcheon v. FEC, which “struck down the aggregate limits on the amount an individual may contribute during a two-year period to all federal candidates, parties and political action committees combined.” Lawyers who engage in aggressive political litigation – successful or not – can make themselves eligible for other rewards: professional prominence that draws additional clients and, perhaps, political and judicial appointments from their clients who win public offices.
What Comes Next?
Evidence of so many lawyers engaging in so much purported misconduct amounts to a flashing red light at the intersection of law and politics. Without attention to such warnings, and meaningful punishment for misconduct, more of the same can be expected in the future.
There is no silver-bullet-solution to the problem of unethical lawyering in political litigation. Instead, the solution should be multifaceted and include the following:
- limiting the amount of money — especially dark money — available to fuel political litigation;
- expanding attention to ethics in law schools beyond preparing students for the Multistate Professional Responsibility Examination and infusing ethics discussions in continuing legal education;
- stringent enforcement of the rules of professional conduct by state regulators (including enforcing rules against pro hac vice admittees who may not be enrolled lawyers in a particular state but are temporarily admitted and allowed to offer legal services by motion and court approval); and
- using more frequent and stronger judicial sanctions for litigation misconduct.
In his seminal 1831 survey of the early United States, “Democracy in America,” Alexis DeTocqueville observed that, “There is hardly any political question in the United States that sooner or later does not turn into a judicial question.”
Unfortunately, it also appears that such politically derived judicial questions can spawn existential threats that may undermine democratic elections in the United States. And, given the scope of dubious conduct reviewed here, it appears that at least some lawyers are at the center of those efforts, rather than supporting the urgent need to stop them.