Election Lawyers

Volume 8 • Issue 2 • January/February 2022
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Academics After the Election

Law school deans consider the impact of the 2020 presidential election

Less than a week after the January 6, 2021, insurrection at the U.S. Capitol, more than 160 law school deans from around the country issued a statement denouncing both the violent assault itself as well as the conduct of the attorneys who had challenged the results of the 2020 election without support from facts or evidence. These lawyers, the statement read, had “betrayed the values of our profession.” A year later, on the anniversary of the attack, a smaller group of law school deans released an edited collection, Beyond Imagination? The January 6 Insurrection, to further dive into the event, its impact on the legal profession and schooling, as well as how to move forward. In the introduction, Villanova University Charles Widger School of Law dean Mark C. Alexander writes, “As lawyers, we must act according to certain standards of conduct, which reflect the great trust placed upon all members of our noble profession.”

It is more difficult to discern what rules of conduct apply to those who are lawyers by training but are not acting as lawyers in their professional capacity, such as politicians.

In that vein, Andrew Perlman, dean of Suffolk University Law School, zeroes in on the lawyers who breached professional ethics during the 2020 election by filing spurious lawsuits challenging the election results or by helping to spread misinformation, asking: can, and should, the profession denounce the lawyers involved? In “The Legal Ethics of Lying About American Democracy,” Perlman’s answer is representative of his profession: it depends. Throughout the chapter, he details what misconduct may have occurred on a spectrum. Lawyers who engaged in murky territory while acting in a professional capacity representing clients, such as Sidney Powell, one of many attorneys who filed lawsuits claiming election fraud despite a lack of evidence, are subject to the ABA Model Rules of Professional Conduct and can be disciplined accordingly.

It is more difficult to discern what rules of conduct apply to those who are lawyers by training but are not acting as lawyers in their professional capacity, such as politicians. What standards apply to them—particularly if they are concurrently members of the bar—when they act unlawfully? Or lawfully, though in ethically uncomfortable ways? Perlman, for instance, identifies that lawyers acting in nonrepresentational roles “may engage in conduct that is so lacking in integrity that we may not be able to trust them to perform their professional duties.” In this scenario, a breach of character and fitness may come into play. (For more, see the March/April 2019 issue of The Practice on Character and Fitness.) Lawyers who abetted the spread of misinformation but did not break the law are tricky. Perlman cautions against disciplining such figures, noting that it could damage the profession by “taking sides in partisan disagreements involving lawful public statements.” He continues, “Whatever remaining credibility lawyers have in the public’s eye would be jeopardized if the legal profession began to arbitrate the truthfulness of highly politicized statements by public figures.”

Providing an array of options for disciplinary proceedings, Perlman settles on public statements of ideals rather than formal disciplinary proceedings. “Instead of seeking to discipline these lawyers with traditional sanctions,” Perlman concludes, “the profession should speak with one voice and across the political spectrum to condemn them for lying about core features of our democracy.”

Mark C. Alexander emphasizes that the group of law school deans came together to consider the implications of January 6 not out of party allegiances but out of professional dedication.

Perlman is not the only voice to consider the ethical implications of January 6, 2021. For instance, Jennifer Mnookin, dean of UCLA School of Law, and Kevin Johnson, dean of UC Davis School of Law, each discuss the importance of teaching students to rigorously study facts and evidence moving forward. Others consider the role of democracy and the rule of law within history, the legal profession, and in law schools, while still others look historically at the roots of the insurrection, including racism and white supremacy, and where lawyers might make a dent in the push to combat such systemic ideas. In the introduction to Beyond Imagination, Alexander emphasizes that the group of law school deans came together to consider the implications of January 6 not out of party allegiances but out of professional dedication. He writes, “This book is not a partisan undertaking. Our cause is the rule of law; our loyalty is to the Constitution of the United States. We support the American people, not one candidate, elected official, or individual.”

Election Lawyers Volume 8 • Issue 2 • January/February 2022

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