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Publication Date: February 25, 2023
DOI:10.14738/assrj.102.13992. Hunter, R. J., & Shannon, J. H (2023). Lawyer Misconduct and Sanctions. Advances in Social Sciences Research Journal, 10(2). 183-
204.
Services for Science and Education – United Kingdom
Lawyer Misconduct and Sanctions
Richard J. Hunter, Jr.
Professor of Legal Studies, Seton Hall University
Adjunct Professor of Business Law, University of Tulsa
John H. Shannon
Professor of Legal Studies, Seton Hall University
Abstract
This article deals with issues relating to lawyer misconduct and possible litigation
sanctions under Rule 11 of the Federal Rules of Civil Procedure relating to filing of a
lawsuit that is frivolous or in “bad faith,” and to actions that may be taken against
an attorney for misconduct under the Model Rules for Lawyer Disciplinary
Enforcement, either in the course of representation of a client or more generally in
the attorney’s practice of law. This is the fourth in a series of articles relating to the
“lawyer client relationship.” *
Keywords: Misconduct; sanctions; election fraud; disbarment; aggravating and mitigating
factors
INTRODUCTION: THE CONTEXT
Two types of attorney sanctions may be identified in the context of litigation: sanctions against
a lawyer for filing a case essentially in “bad faith” or one that is “frivolous,” resulting in the
award of costs incurred in defending a suit, and actions which may be taken against a lawyer
for misconduct in the course of a representation of a client or more generally in the attorney’s
practice of law pursuant to the Model Rules for Lawyer Disciplinary Enforcement. Litigation
sanctions may be awarded pursuant to the Federal Rules of Civil Procedure, more specifically
Rule 11 (Cohen, 2008; Holloman & Hall, 2018).
Crist (2022) Writes:
“A lawyer may file a request for sanctions in response to a frivolous lawsuit. A frivolous lawsuit
is defined as a complaint that has no legal merit. Sanctions for frivolous actions include payment
of the opposing party's costs and attorney's fees.”
“Sanction, another form of discipline, occurs in the context of litigation. In Federal court, a
violation of Rule 11 of the Federal Rules of Civil Procedure occurs when an attorney knowingly
presents to the court a pleading, written motion, or other paper for an improper purpose.”
The text of Rule 11 is especially expositive.
Rule 11 – Signing Pleadings, Motions, and Other Papers
(a) Signature. Every pleading, written motion, and other paper must be signed by at least one
attorney of record in the attorney’s name—or by a party personally if the party is
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unrepresented. The paper must state the signer’s address, e-mail address, and telephone
number. Unless a rule or statute specifically states otherwise, a pleading need not be verified
or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is
promptly corrected after being called to the attorney’s or party’s attention.
(b) Representations to the Court. By presenting to the court a pleading, written motion, or other
paper—whether by signing, filing, submitting, or later advocating it—an attorney or
unrepresented party certifies that to the best of the person’s knowledge, information, and
belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented
for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase
the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by
existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law
or for establishing new law; (3) the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support after a reasonable opportunity for
further investigation or discovery; and (4) the denials of factual contentions are warranted on
the evidence or, if specifically so identified, are reasonably based on belief or a lack of
information.
(c) Sanctions. (1) In General. If, after notice and a reasonable opportunity to respond, the court
determines that Rule 11(b) has been violated, the court may impose an appropriate sanction
on any attorney, law firm, or party that violated the rule or is responsible for the violation.
Absent exceptional circumstances, a law firm must be held jointly responsible for a violation
committed by its partner, associate, or employee. (2) Motion for Sanctions. A motion for
sanctions must be made separately from any other motion and must describe the specific
conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must
not be filed or be presented to the court if the challenged paper, claim, defense, contention, or
denial is withdrawn or appropriately corrected within 21 days after service or within another
time the court sets. If warranted, the court may award to the prevailing party the reasonable
expenses, including attorney’s fees, incurred for the motion. (3) On the Court’s Initiative. On its
own, the court may order an attorney, law firm, or party to show cause why conduct specifically
described in the order has not violated Rule 11(b). (4) Nature of a Sanction. A sanction imposed
under this rule must be limited to what suffices to deter repetition of the conduct or comparable
conduct by others similarly situated. The sanction may include nonmonetary directives; an
order to pay a penalty into court; or, if imposed on motion and warranted for effective
deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s
fees and other expenses directly resulting from the violation. (5) Limitations on Monetary
Sanctions. The court must not impose a monetary sanction: (A) against a represented party for
violating Rule 11(b)(2); or (B) on its own, unless it issued the show-cause order under Rule
11(c)(3) before voluntary dismissal or settlement of the claims made by or against the party
that is, or whose attorneys are, to be sanctioned. (6) Requirements for an Order. An order
imposing a sanction must describe the sanctioned conduct and explain the basis for the
sanction.
A second type of sanctions may be characterized as disciplinary sanctions. The Standards for
Imposing Lawyer Sanctions (American Bar Association, 1986) were adopted by the American
Bar Association (ABA) in 1986 and were amended in 1992 (Cameron, 1987). “These standards
provide a framework to guide the courts and disciplinary agencies, including disciplinary
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counsel, in imposing sanctions, thereby providing the flexibility to select the appropriate
sanction in each particular case of lawyer misconduct.” Any sanction imposed, however, may
depend on the presence of aggravating or mitigating factors.
The Standards for Imposing Lawyer Sanctions are designed to provide a “comprehensive system
for determining sanctions, permitting flexibility and creativity in assigning sanctions in
particular cases of lawyer misconduct.” The application of the Standards are designed to
achieve a degree of “consistency in the imposition of lawyer discipline necessary for fairness to
the public and the bar.” Gassman and Olivera (2019, p. 34) add: “In the legal profession, the
Model Rules of Professional Conduct and any adopted rules or guidelines of civility contain the
standards of conduct that attorneys are expected to follow.”
The purposes underlying the regime of lawyer discipline (see Chambliss, 2019) may be
summarized as follows:
“The purposes of lawyer sanctions can best be served, and the consistency of those sanctions
enhanced, if courts and disciplinary agencies articulate the reasons for the sanctions imposed.
Courts perform a valuable service for the legal profession and the public when they issue
opinions in lawyer discipline cases that explain the imposition of a specific sanction. Written
opinions of the court not only serve to educate members of the profession about ethical
behavior, but also provide precedent for subsequent cases.”
Attorney Ira Leesfield (2000) provides a proper context to issues relating to lawyer misconduct
when he writes: “[An] increasing number of lawyers equate litigation with war. Trampling the
truth, taking no prisoners, scorching the earth-doing anything to win, regardless of the
consequences....” Smith (2022) refers to the American legal system often as “trial by combat.”
Perhaps this attitude may be best exemplified in how it has “played out” recently in the
American political and legal systems involving disciplinary actions in the form of substantial
monetary fines imposed by courts or in the imposition of formidable sanctions imposed by
courts after careful consideration by the Bar.
Two examples—one dealing with a lawsuit filed by former President Donald Trump against
Hillary Clinton and others, and another involving the alleged Michigan voter fraud cases—offer
the backdrop to the discussion of litigation sanctions (see Pennycock & Rand, 2021). A third
example, involving former New York City Mayor Rudy Giuliani involves sanctions imposed on
an individual attorney for professional misconduct (see Joy & McMunigal, 2022). A fourth
example, involving a recent action taken against Trump attorney and confidant John Eastman,
provides additional context and indicate the seriousness with which the Bar approaches
attorney misconduct.
THE TRUMP SUIT AGAINST HILLARY CLINTON AND OTHERS
What is a frivolous action? Holloman and Hall (2018) write: “A complaint . . . is frivolous where
it lacks and arguable basis either in law or fact” (see Neitzke v. Williams, 1989). An action is
frivolous when either “(1) the factual contentions are clearly baseless, such as when allegations
are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless
legal theory” (Livingston v. Adirondack Beverage Co., 1998). A “bad faith claim” is one filed for
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an “improper purpose, such as to harass or to cause unnecessary delay or needless increase in
the cost of litigation” (Morley v. Ciba-Geigy Corp., 1995).
Courts have determined that claims are frivolous (Ward, 1991; Mann & Haarlow, 2012; Russell,
2021) or were made “in bad faith” in several situations:
• Where the plaintiff filed a claim based on false allegations;
• Where plaintiff failed to allege facts sufficient to support their claim;
• Where plaintiff filed claims under an inapplicable statute;
• Where plaintiff knew facts that would defeat the claim at the time of filing; or
• Where, in the context of a class action, plaintiff failed to adequately investigate the
individual claims to support the class action.
In a 46-page order issued on January 19, 2023, U.S. District Court Judge Donald M. Middlebrooks
levied a fine of nearly $1 million ($937,989) jointly against former President Donald Trump and
his attorney, Alina Habba (Nguyen, 2023), to reimburse legal costs incurred by Hillary Clinton
and others who were named as defendants in one of the former President’s failed lawsuits (see
Donald J. Trump v. Hillary R. Clinton, et al., 2023). Under Judge Middlebrook’s sanctions order,
“Clinton will receive the largest payout from Trump and Habba of all the defendants, nearly
$172,000” (Nava, 2023).
The claims of the former President were detailed in a lawsuit filed against Hillary Clinton,
former government officials, and others, including former FBI Director James Comey, and Rep.
Adam Schiff (D-Calif.). The former President had filed a lawsuit claiming that in 2016, Mrs.
Clinton, who was the Democratic Party’s presidential nominee at the time, and the Democratic
National Committee, along with others, had orchestrated a “malicious conspiracy” to
investigate his campaign's ties to Russia, "destroying his life" and attempting to “rig” the
election in Clinton’s favor.
“Middlebrooks has determined that the egregious deficiencies of the argument, the public
presentations by Trump and his team that the argument was robust and — most importantly
— Trump’s pattern of frivolous lawsuits that went unpunished should yield an actual penalty”
(Bump, 2023). The judge continued: “A continuing pattern of misuse of the courts by Mr. Trump
and his lawyers undermines the rule of law, portrays judges as partisans, and diverts resources
from those who have suffered actual legal harm.... Here, we are confronted with a lawsuit that
should never have been filed, which was completely frivolous, both factually and legally, and
which was brought in bad faith for an improper purpose” (quoted in Bump, 2023).
Perhaps most interestingly, Judge Middlebrooks commented that sanctions against the former
President and his attorney were especially appropriate since: “Mr. Trump is a prolific and
sophisticated litigant who is repeatedly using the courts to seek revenge on political
adversaries. He is the mastermind of strategic abuse of the judicial process, and he cannot be
seen as a litigant blindly following the advice of a lawyer. He knew full well the impact of his
actions.”
Judge Middlebrooks characterized the basis of the lawsuit as a veritable “shotgun pleading,”
loosely aimed at a number of targets, and “amount[ing] to obstruction of justice.” The judge
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described having sifted “through the thread of allegations against each defendant only to find
they added up to no cognizable claim. And the pleadings were drafted in a way to disguise that
fact.” Judge Middleton found that Trump and his attorneys “consistently misrepresented and
cherry-picked portions of public reports and filings to support a false factual narrative.”
Even the amended version the lawsuit, Judge Middleton wrote, “is a hodgepodge of
disconnected, often immaterial events, followed by an implausible conclusion. This is a
deliberate attempt to harass; to tell a story without regard to facts.”
The judge specifically dealt with the former President’s allegations about the “unfairness of the
Russia probe” and that the conclusions of special counsel Robert S. Mueller had exonerated him
(Hunter & Shannon, 2019). In this regard, Judge Middlebrooks wrote that Trump’s conclusion
may be “perhaps acceptable as a cable news talking point,” but is “neither an accurate nor fair
reading of the Mueller Report.” The judge reached a similar conclusion for the “dossier” of
allegations against Trump, the indictments filed by Special Counsel John Durham which had
failed to obtain any guilty verdicts (Weber, 2022), and for Trump’s “looping in” his suspension
from Twitter. “The assertion that the Twitter ban was caused by misinformation by Ms. Clinton
five years earlier is plainly false,” Judge Middlebrooks wrote.
Bump (2023) argues that “None of this alone would necessarily have led to Trump and Attorney
Habba being sanctioned.” However, Middlebrooks noted that the suit was one of several with
similar aims: “bolstering Trump’s arguments, whipping up attention and spurring
contributions. Lawsuits against CNN, against Twitter, against New York Attorney General
Letitia James (D), even against the board that presents the Pulitzer Prize — in these,
Middlebrooks saw the same pattern” (quoted in Bump, 2023).
The Michigan Election Fraud Cases
In a series of eight cases, described below, Republican operatives and Trump supporters had
challenged the Michigan presidential election victory of Joe Biden (Boucher, Egan, &
Hendrickson, 2020). All of the cases were eventually either dismissed or withdrawn, giving rise
to the imposition of sanctions against the attorneys who brought the legal challenges, “including
Trump allies Sidney Powell and Lin Wood (Neidig, 2021) and seven others” (Kraft & Allen,
2021).
• Stoddard et al. v. City Election Commission et al.
A Trump election challenger at TCF Center where ballots were being tabulated and a
representative of a nonprofit that describes its mission as maintaining "the integrity of electoral
processes" argued that Democratic Party inspectors had improperly duplicated ballots and
asked the Wayne County Circuit Court to stop the county's Board of Canvassers from certifying
the election results.
Status: Rejected
What The Court Said: "The Court finds that it is mere speculation by plaintiffs that hundreds
or thousands of ballots have, in fact, been changed and presumably falsified,” wrote Wayne
County Circuit Court Chief Judge Timothy Kenny.
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• Costantino et al v. City of Detroit et al.
Two Wayne County residents argued that widespread election fraud and misconduct took place
at the TCF Center and asked the Wayne County Circuit Court to stop the certification of the
county's election results until such time as an audit could be conducted.
Status: Rejected
What The Court Said: "Plaintiffs rely on numerous affidavits from election challengers who
paint a picture of sinister fraudulent activities. ... Plaintiffs' interpretation of events is incorrect
and not credible." — Wayne County Circuit Court Chief Judge Timothy Kenny.
Both the Michigan Court of Appeals and Michigan Supreme Court refused to reverse the lower
court's ruling, and the Wayne County Circuit Court rejected a subsequent request to audit the
election results before Michigan's presidential electors convened to cast their votes for Joe
Biden.
• Bally et al v. Whitmer et al.
In this lawsuit, filed November 11 in the U.S. District Court in Grand Rapids, Lena Bally and
three other Michigan voters alleged fraud and asked the court to exclude vote totals from three
counties won by President-elect Joe Biden — Wayne, Washtenaw and Ingham — or block the
certification of statewide results.
Status: Voluntarily withdrawn November 16 (see Birkle, 2020). U.S. District Judge Janet Neff
did not have the opportunity to “weigh in” on this case before it was withdrawn.
• Donald J. Trump for President, Inc. et al. v. Benson et al.
The Trump campaign pointed to more than 100 affidavits alleging fraud and misconduct at the
TCF Center in Detroit. Trump sought to delay or prevent the certification of votes through the
filing of this lawsuit.
Status: Voluntarily withdrawn. The Trump campaign withdrew the lawsuit eight days after
filing it, arguing, although incorrectly, that their filing was no longer needed because the Wayne
County Board of Canvassers had refused to certify local results. The board did, in fact, certify
results; however two commissioners had filed affidavits indicating that they wanted to change
their votes and decertify the results.
• Johnson et al v. Benson et al. (U.S. District Court)
A lawsuit brought with the assistance of the conservative Thomas More Society alleged that
Michigan Secretary of State Jocelyn Benson had overstepped her authority by mailing Michigan
voters applications for absentee ballots, and that election misconduct had occurred at the TCF
Center in Detroit
Status: Voluntarily withdrawn. The court never got the chance to review the arguments
because the suit was withdrawn only three days after it was filed. The allegations essentially
relied on the same misleading information presented in other court filings.
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• Johnson et al. v. Benson et al. (Michigan Supreme Court)
Angelic Johnson and Linda Lee Tarver, both members of Black Voices for Trump, petitioned the
state Supreme Court directly on November 26. In addition to seeking a full audit of Michigan’s
election returns, plaintiffs sought a range of other court actions, including a declaration that
Secretary of State Jocelyn Benson had violated their constitutional rights, seizure of ballots,
appointment of a special master or the creation of a special legislative committee to investigate
claims of fraud, and an injunction preventing Gov. Gretchen Whitmer from certifying Michigan's
presidential election results, which had already taken place.
Status: The petition was denied by the Michigan Supreme Court in a 4-3 decision, with
dissenting justices indicating that they wanted “additional briefing” and oral arguments before
actually deciding the case.
What The Court Said: "I believe it would be irresponsible to continue holding out the
possibility of a judicial solution to a dispute that it appears must be resolved politically," stated
Justice Elizabeth Clement, in concurring with the majority decision.
• Leaf et al v. Whitmer et al.
Controversial Barry County Sheriff Dar Leaf, a vocal Trump supporter, filed suit in the U.S.
District Court in Grand Rapids on December 6, alleging fraud and seeking a temporary
restraining order directing local clerks not to comply with a routine post-election
memorandum from the Secretary of State's Office directing them to delete certain records
related to the November 3 vote. Chief District Judge Robert Jonker denied the requested
order December 7.
Status: Immediate emergency relief was denied
What The Court Said: "Plaintiffs' applications invite the court to make speculative leaps
toward a hazy and nebulous inference that there has been numerous instances of election fraud
and that defendants are destroying the evidence. There is simply nothing of record to infer as
much, much less conclude that irreparable injury will occur before the defendants can be
heard."
Imposing Sanctions
Perhaps the most notorious of the cases was King et al v. Whitmer et al.
The so-called Michigan "Kraken" lawsuit was filed by ex-Trump attorney Sidney Powell on
behalf of potential Republican delegates to the Electoral College. Relying on conspiracy theories
and misinformation, this lawsuit asked the court to force Gov. Gretchen Whitmer to overturn
election results and award the state’s sixteen electoral votes to Trump. [The BBC (2000)
described the meaning behind the use of the term Kraken as follows: “Lawyer Sidney Powell -
who was until recently part of Donald Trump's legal team and is now acting independently -
has described the case she was mounting as a "Kraken" that, when released, would destroy the
case for Democrat Joe Biden having won the US presidency” (see also Thomas, 2020).]
U.S. District Judge Linda Parker phrased the question before the Court: “Whether plaintiffs’
attorneys engaged in litigation practices that are abusive and, in turn, sanctionable” (p. 2). Judge
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Parker described an attorney’s “obligation to the judiciary, their profession, and the public” as
follows:
(i) to conduct some degree of due diligence before presenting allegations as truth;
(ii) to advance only tenable claims; and
(iii) to proceed with a lawsuit in good faith and based on a proper purpose. Attorneys
also have an obligation to dismiss a lawsuit when it becomes clear that the requested
relief is unavailable” (p. 2).
Judge Parker stated:
“This lawsuit represents a historic and profound abuse of the judicial process. It is one thing to
take on the charge of vindicating rights associated with an allegedly fraudulent election. It is
another to take on the charge of deceiving a federal court and the American people into
believing that rights were infringed, without regard to whether any laws or rights were in fact
violated. This is what happened here. But attorneys cannot exploit their privilege and access to
the judicial process to do the same. And when an attorney has done so, sanctions are in order”
(p. 1).
Judge Parker “blasted the lawyers for seeking to undermine the election results with baseless
claims of systemic election fraud” (Neidig, 2021) in several specific ways:
“the attorneys who filed the instant lawsuit abused the well-established rules applicable to the
litigation process by proffering claims not backed by law;
proffering claims not backed by evidence (but instead, speculation, conjecture, and
unwarranted suspicion);
proffering factual allegations and claims without engaging in the required prefiling inquiry;
and dragging out these proceedings even after they acknowledged that it was too late to attain
the relief sought. And this case was never about fraud—it was about undermining the People’s
faith in our democracy and debasing the judicial process to do so” (p. 3).
Judge Parker concluded that the court was “duty-bound to grant the motions for sanctions filed
by Defendants and Intervenor-Defendants” pursuant to Rule 11 of the Federal Rules of Civil
Procedure” under 28 U.S.C. § 1927, and under the court’s own “inherent authority” to do so (pp.
4-5). The court also commented that “the conduct of Plaintiffs’ counsel, which also constituted
violations of the Michigan Rules of Professional Conduct, calls into question their fitness to
practice law. This warrants a referral for investigation and possible suspension or disbarment
to the appropriate disciplinary authority for every state bar and federal court in which each
attorney is admitted” (p. 108).
The Court’s Conclusions Relating to the Imposition of Sanctions is Most Expositive:
“This lawsuit should never have been filed. The State Defendants and the Intervenor- Defendants should never have had to defend it. If Plaintiffs’ attorneys are not ordered to
reimburse the State Defendants and the City for the reasonable fees and costs incurred to
defend this action, counsel will not be deterred from continuing to abuse the judicial system to
publicize their narrative. Moreover, this Court has found that Plaintiffs’ counsel initiated this
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litigation for an improper purpose, rendering this the ‘unusual circumstance’ in which
awarding attorneys’ fees is warranted” (pp. 107-108).
The implications of these cases, coupled with the actions taken against former mayor Giuliani
and the prosed disbarment of attorney John Eastman, are most relevant to the discussion of
lawyer misconduct and the imposition of sanctions for such misconduct under the ABA
Standards for Imposing Lawyer Sanctions, sometimes referred to as the Model Rules.
AN OVERVIEW OF ATTORNEY SANCTIONS
Zacharias (2003, pp. 685-686) stated:
“Professional discipline of lawyers is a form of administrative regulation. It is a follow-up to
lawyer licensing-the mechanism by which the initial grant of a license is reevaluated. Sanctions
other than disbarment may be imposed through disciplinary proceedings, but these, with few
exceptions, are limited to sanctions that are lesser-included forms of punishment and that are
designed to shape the individual lawyer's future conduct. For example, lawyer sanctions
include suspension, reprimands, and educational requirements. Fines, restitution, and
imaginative penalties, such as entity liability and public service requirements, typically are not
within the power of disciplinary agencies to impose.”
In a proceeding dealing with former Nixon Vice President Spiro Agnew, the Court of Appeals of
Maryland explained:
“Few vocations offer as great a spectrum for good and honorable works as does the legal
profession. The attorney is entrusted with the life savings and investments of his clients. He
becomes the guardian of the mentally deficient and potential savior for the accused. He is a
fiduciary, a confidant, an advisor, and an advocate. However, the great privilege of serving in all
of these capacities does not come without the concomitant responsibilities of truth, candor and
honesty. In fact, it can be said that the presence of these virtues in members of the bar comprises
a large portion of the fulcrum upon which the scales of justice rest. Consequently, an attorney’s
character must remain beyond reproach” (Maryland State Bar Association v. Agnew, 1974, p.
814).
The preamble to the American Bar Association (ABA) Model Rules (2023) explains that the
“legal profession’s relative autonomy carries with it special responsibilities of self-government.
The profession has a responsibility to assure that its regulations are conceived in the public
interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer
is responsible for observance of the Rules of Professional Conduct.”
The Model Rules state that “[n]eglect of these responsibilities compromises the independence
of the profession and the public interest which it serves.”
“An attorney works within a system of rules that regulates and potentially sanctions them for
failure to comply with the standards governing their professional conduct. The primary
purposes of disciplinary proceedings are the protection of the public, the courts and the legal
profession; the maintenance of high professional standards by attorneys and the preservation
of public confidence in the legal profession” (California State Bar Association, 2023; see also,
e.g., Gillette v. Edison, 2009).
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In In re Shepard (2015, p. 283) the Arkansas Supreme Court noted that “Protection of the public
squares with the notion that a license to practice law is neither a right nor an entitlement, but
a privilege conferred on the lawyer primarily for the benefit of the public....” And, in In re Torres
(2015), a New Jersey Court stated that “[t]he attorney disciplinary system is not designed to
punish lawyers. Its goals are to protect the public and preserve the public’s confidence in the
bar. The imposition of discipline in a particular case, thus, is meant to foster continued faith in
the legal profession as a whole.”
Remedies and sanctions for attorney misconduct (see D’Amore, 2021) can be categorized as:
• Sanctions and remedies for attorney misconduct which are available to public authorities.
Sanctions include professional discipline, potential criminal liability of lawyers who
assist their clients in committing criminal acts (Shapiro, 2015), and sanctions imposed
for contempt of court. Professional discipline imposed by the relevant state Bar is the
most widely applied sanction for attorney misconduct.
• Sanctions which are available to lawyers' clients. For example, monetary damages may
be awarded for attorney malpractice (Levine, 2021; Sember, 2022), attorney's fee may
be forfeited, and the judicial process may result in the nullification of gifts or business
transactions that breach a lawyer's fiduciary duty to a client under a theory of undue
influence or duress (see Phillips & Wager, 2017).
• Remedies may also be available to third parties injured by the misconduct of an attorney
undertaken on behalf of a client. Sanctions may include prohibiting an attorney from
representing a client in violation of the lawyer's duty to a third party (see DeBerry v.
Summers, 2013), awarding damages for breach of an obligation the attorney assumes to
a non-client, and judicial nullification of settlements or jury verdicts obtained by
attorney misconduct.
A DISCUSSION OF THE MODEL RULES FOR LAWYER DISCIPLINARY ENFORCEMENT
The Model Rules underscore the underlying purpose behind the imposition of lawyer discipline
and the important distinction between public and private forms of attorney discipline:
“Ultimate disposition of lawyer discipline should be public in cases of disbarment, suspension,
and reprimand. Only in cases of minor misconduct, when there is little or no injury to a client,
the public, the legal system, or the profession, and when there is little likelihood of repetition
by the lawyer, should private discipline be imposed” (American Bar Association, 2023).
Quoting from the Model Rules, misconduct on the part of an attorney is grounds for one or more
of the following sanctions:
1. Disbarment by the court.
2. Suspension by the court for an appropriate fixed period of time not in excess of three
years (see Guerrero v. United States, 1999; Paukner, 2020).
3. Probation imposed by the court not in excess of two years, or imposed by the board or
counsel with the consent of the respondent not in excess of two years; provided,
however, that probation may be renewed for an additional [two year] period by consent
or after a hearing to determine if there is a continued need for supervision. If the
respondent objects to the board or counsel's imposition of probation, the misconduct
must either be made the subject of formal charges or a recommendation that probation
be imposed must be filed with the court. The conditions of probation should be stated
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in writing. Probation shall be used only in cases where there is little likelihood that the
respondent will harm the public during the period of rehabilitation and the conditions
of probation can be adequately supervised. Probation shall be terminated upon the
filing of an affidavit by respondent showing compliance with the conditions and an
affidavit by the probation monitor stating that probation is no longer necessary and
summarizing the basis for that statement.
4. Reprimand by the court or the board. A reprimand shall be in writing and either imposed
in person or served upon the respondent by certified mail. A reprimand issued by the
court shall be published in the official reports for the guidance of other lawyers. A
reprimand imposed by the board shall be published in the journal of the state bar and
in a newspaper of general circulation in each judicial district in which the lawyer
maintained an office for the practice of law (see Gassman, Olivera, & Kraft, 2020).
5. Admonition by disciplinary counsel imposed with the consent of the respondent and the
approval of the chair of a hearing committee. An admonition cannot be imposed after
formal charges have been issued. Admonitions shall be in writing and served upon the
respondent. They constitute private discipline since they are imposed before the filing
of formal charges. Only in cases of minor misconduct, when there is little or no injury to
a client, the public, the legal system, or the profession, and when there is little likelihood
of repetition by the lawyer, should an admonition be imposed. A summary of the
conduct for which an admonition was imposed may be published in a bar publication
for the education of the profession, but the lawyer shall not be identified. An admonition
may be used in subsequent proceedings in which the respondent has been found guilty
of misconduct as evidence of prior misconduct bearing upon the issue of the sanction to
be imposed in the subsequent proceeding (see Carroll, Westenberg, & Masling, 2020).
6. Upon order of the court or the board, or upon stipulation, restitution to persons
financially injured, disgorgement of all or part of the lawyer's or law firm's fee, and
reimbursement to the client security [protection] fund.
7. Upon order of the court or the board, or upon stipulation, assessment of the costs of the
proceedings, including the costs of investigations, service of process, witness fees, and a
court reporter's services, in any case where discipline is imposed or there is a transfer
to disability inactive status.
8. Limitation by the court on the nature or extent of the respondent's future practice”
(emphasis added in the quoted materials).
Written conditions may be attached to an admonition or to a reprimand. The failure to comply
with any conditions is itself grounds for reconsideration of the matter and may result in the
filing of formal charges against an attorney.
In determining whether or not to impose sanctions for lawyer misconduct, the court or an
administrative body (such as a State Bar Association) which has been delegated with the
responsibility of dealing with allegations of lawyer misconduct shall consider the following
factors:
1. whether the lawyer has violated a duty owed to a client, to the public, to the legal
system, or to the profession;
2. whether the lawyer acted intentionally, knowingly, or negligently;
3. the amount of the actual or potential injury caused by the lawyer's misconduct; and
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4. the existence of any aggravating or mitigating factors (see generally Pollack & Reiter,
2020).
Lundberg and Schroeder (2019, p. 19) argue that:
“For lawyer discipline to be truly effective, sanctions must be based on clearly developed
standards. Inappropriate sanctions can undermine the goals of lawyer discipline: sanctions
which are too lenient fail to adequately deter misconduct and thus lower public confidence in
the profession; sanctions that are too onerous may impair confidence in the system and deter
lawyers from reporting ethical violations on the part of other lawyers. Inconsistent sanctions,
either within a jurisdiction or among jurisdictions, cast doubt on the efficiency and the basic
fairness of all disciplinary systems.”
In furtherance of this goal, a list of aggravating and mitigating circumstances are found in
Standard 9. Aggravating factors include: prior disciplinary offenses (Reporter, 2015); a
dishonest or selfish motive; a pattern of misconduct; multiple offenses (In re Scott M. Holper,
2017); bad faith obstruction of the disciplinary proceeding by intentionally failing to comply
with rules or orders of the disciplinary agency; submission of false evidence, false statements
or other deceptive practices during disciplinary process; refusal to acknowledge the wrongful
nature of conduct; the vulnerability of a victim; substantial experience in the practice of law;
and indifference to making restitution (generally Levin, 1998).
Mitigating factors may include the absence of prior disciplinary record (contra Levin, 1998, p.
33); the absence of dishonest or selfish motive; personal or emotional problems; timely good
faith effort to make restitution (Longan, 2019, p. 164) or to rectify consequences of misconduct;
full and free disclosure to disciplinary board or cooperative attitude toward proceedings (see
Levin & Robbennolt, 2021); inexperience in the practice of law (Phillips, 2018); character or
reputation; physical or mental disability or impairment (see Reich, 2020; Esquivel, 2020; Yost,
2022); delay in disciplinary proceedings; interim rehabilitation; imposition of other penalties
or sanctions; remorse; and remoteness of prior offenses (generally Lundberg & Schroeder,
2019).
It is interesting to note that in general, the disposition of lawyer discipline shall be public in
cases of disbarment, suspension, probation, and reprimand—but not in any cases involving
admonition. In all cases of public discipline by the court, the court shall issue a written opinion
setting forth its justification for imposing the sanction in that particular case.
Commentary Based on the Model Rules
The Model Rules provide important commentary on the substance of the disciplinary rules. As
a general rule, the supreme or highest court of an individual state has the sole authority to
license attorneys practicing within their jurisdiction. As a result, even though a form of
discipline discussed above has been recommended by a committee or board of a State Bar
Association designated to perform such a function, the court (usually the State Supreme Court)
has the exclusive responsibility to revoke or suspend the license of an attorney. The duration of
a suspension is often an issue for the disciplinary board and any decision should reflect the
nature and extent of the lawyer's misconduct and any “mitigating or aggravating
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circumstances” involved. “Where the misconduct is so severe that even a three-year suspension
is not adequate, the lawyer should be disbarred” (ABA Rule 10).
As a general rule, a lawyer should not be suspended for an indefinite period. Any order of
suspension should therefore specify the minimum period of time which must elapse before the
lawyer may seek reinstatement. Probation is the appropriate sanction when the respondent
can continue to perform legal services, but has evidenced problems that require some type of
supervision—in many cases, by a senior member of a law firm in which a lawyer is practicing.
As noted by the ABA in discussing Rule 10, “Probation should be used only in those cases where
there is little likelihood that the respondent will harm the public during the period of
rehabilitation and the conditions of probation can be adequately supervised.” Probation may
be appropriate in certain cases of temporary or minor disability or impairment (i.e., Yost, 2022),
for which the lawyer is capable of being treated without seeking an inactive status with the Bar.
As a practical matter, there may be a limited capacity and resources to effectively supervise a
lawyer who has been placed on probation. As a result, probation should not be renewed more
than once. Thus, if the disability or impairment cannot be resolved by probation of two years
or less, probation may be an inadequate sanction and a suspension from the practice of law may
be deemed as more appropriate. However, in exceptional circumstances, probation may be
renewed for an additional period of time at the discretion of the disciplinary body.
A reprimand should be imposed only in cases of relatively minor misconduct; however, a
reprimand can be imposed only after the filing of formal charges and a hearing. A reprimand is
issued in writing and imposed either in person or served upon the respondent by certified mail.
A reprimand should be published in the official judicial reports, in the journal of the state bar,
and in a newspaper of general circulation in each judicial district in which the lawyer
maintained an office for the practice of law as a way of notifying the public that a reprimand
has been issued.
An admonition should be in writing and served upon the respondent. An admonition is a form
of private discipline since an admonition is imposed before the filing of formal charges against
an attorney. An admonition informs the lawyer that his or her conduct is “unethical.” However,
in order to deter other lawyers from engaging in such conduct, the Bar association should
publish a report describing the facts in cases in which an admonition has been imposed, but
omitting the names of the disciplined lawyers. Although private, an admonition may be admitted
as evidence in a subsequent proceeding in which the respondent has been found guilty of
misconduct as evidence of prior misconduct bearing upon the issue of the sanction to be
imposed in any subsequent proceeding.
Whenever possible, the disciplinary process should facilitate restitution to the victims of the
respondent's misconduct (In re Parks, 2021) without the necessity of requiring victims to
institute separate proceedings at their own expense (generally Sember, 2022). If it is feasible
to determine the value of the client's loss resulting from the respondent's misconduct, the
respondent should be ordered to make restitution in that amount “as promptly as
circumstances permit.”
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As a mark of its effectiveness, restitution should be made a part of the disciplinary order as a
condition of reinstatement of the attorney and the respondent must present proof of restitution
as part of any application for reinstatement under Rule 25(I). Interestingly, the failure to
comply with the order providing for restitution may itself warrant further discipline. Whenever
a respondent is found to have engaged in misconduct warranting the imposition of discipline,
the attorney should be required to reimburse the agency for the costs of the proceedings, other
than attorney fees.
“RUDY: WE HARDLY KNEW YOU!”
Former New York City Mayor Rudy Giuliani, who served as the personal attorney for
former President Donald Trump, was suspended on June 24, 2021, from practicing law in
New York State by an appellate court that found he made “demonstrably false and
misleading statements” about the 2020 election (see Orden, Stracqualursi, & Polantz,
2021). Moliterno (2021, pp. 416-417) asks: “What law should the New York authorities apply
when judging Giuliani’s conduct after the November 2000 election, mainly in Michigan, Georgia,
and Pennsylvania (including a court appearance), as he pressed demonstrably false claims
about vote fraud?”
Kiely and Farley (2021), in commenting on the underlying facts relating to Giuliani’s
suspension, cited the following:
• Pennsylvania ‘Fraud’ Case Without Evidence of Fraud
Giuliani’s November 17, 2020, appearance before a Federal court in the matter of Donald J.
Trump for President, Inc. v Boockvar (2020). At a hearing as a part of series of allegations relating
to “nationwide voter fraud” involving “at least 10 other jurisdictions,” U.S. District Judge
Matthew Brann asked Giuliani, “So you are alleging fraud?” Giuliani responded, “Yes, your
honor.” Judge Brann stated: “Respondent repeatedly represented to the court that his client,
the plaintiff, was pursuing a fraud claim, when indisputably it was not.” The court continued,
“Respondent’s client had filed an amended complaint before the November 17, 2020,
appearance in which the only remaining claim asserted was an equal protection claim, not
based on fraud at all.”
In an order dismissing the case, Judge Brann criticized the Trump campaign for seeking to
prevent Pennsylvania from certifying its election results without presenting any evidence to
support such a “drastic remedy.” The judge wrote:
“One might expect that when seeking such a startling outcome, a plaintiff would come
formidably armed with compelling legal arguments and factual proof of rampant corruption.
Instead, this Court has been presented with strained legal arguments without merit and
speculative accusations, unpled in the operative complaint and unsupported by evidence. In the
United States of America, this cannot justify the disenfranchisement of a single voter, let alone
all the voters of its sixth most populated state.”
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• Baseless Claim of Underage Voters in Georgia
The court noted that Giuliani on multiple occasions baselessly claimed on his radio show, “Chat
with the Mayor,” that there were thousands of underage voters who illegally voted in Georgia
— even after the state declared the claim to be false.
“At various times, respondent claimed that 65,000 or 66,000 or 165,00 underage voters illegally
voted in the Georgia 2020 election,” the court said in its order. “The Georgia Office of the
Secretary of State undertook an investigation of this claim. It compared the list of all of the
people who voted in Georgia to their full birthdays. The audit revealed that there were zero (0)
underage voters in the 2020 election.”
According to the New York court order, Giuliani repeated this false claim “at least on January 5,
January 7, and January 22, 2021,” and again on April 27, which was after the Attorney Grievance
Committee filed a motion to suspend Giuliani.
• Unsupported Claims of ‘Illegal Aliens’ Voting in Arizona
The New York court said Giuliani “made false and misleading statements that ‘illegal aliens’ had
voted in Arizona during the 2020 presidential election” — providing estimates at various times
that ranged from 32,000 to a “few hundred thousand.” In fact, “These voters are registered to
vote in accordance with federal voting rights laws, attesting to their eligibility, including their
citizenship, under penalty of perjury.” The court conclude that “It is flat out wrong to say that
they are not legal voters.”
• No Evidence of Dead People Voting in Philadelphia
The suspension order noted that Giuliani “repeatedly stated that dead people ‘voted’ in
Philadelphia in order to discredit the results of the vote in that city. He quantified the amount
of dead people who voted at various times as 8,021; while also reporting the number as 30,000.”
In an interview on Fox News on November 8, Giuliani called Philadelphia “an epicenter of voter
fraud” and stated, “we’re going to be looking at dead persons’ ballots, which may actually be
very, very substantial.” However, the Trump campaign never provided any evidence that
thousands of ballots were cast by people who had died. The court noted that Giuliani “has not
provided this tribunal with any report or the results of any investigation which supports his
statements about how many dead voters he claims voted in Philadelphia.”
• ‘Suitcases’ of Ballots in Georgia
The order of suspension stated that Giuliani “represented that video evidence from security
cameras depicted Georgia election officials engaging in the illegal counting of mail-in ballots. ...
The gist of his claim was that illegal ballots were being surreptitiously retrieved from suitcases
hidden under a table and then tabulated.” However, state officials indicated that the “video
showed the supposed ‘suitcases’ were actually standard containers used to secure ballots, and
that the ballots in question were opened and prepared for counting earlier in the night in full
view of observers.”
• Dominion Voting System Claims
Perhaps the most widely publicized charges involved those involving Dominion Voting Systems
(Schechter, 2023). The order of suspension found that Giuliani had made “extensive and wide-
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ranging claims about Dominion Voting Systems Inc.’s voting machines manipulating the vote
tallies to support his narrative that votes were incorrectly reported” in the State of Georgia
(Corasaniti, 2021). Former President Trump himself had repeated the conspiracy theory that
Dominion Voting Systems had switched “thousands of votes” from him to President-elect Joe
Biden. Trump claimed these were cases of outright “theft” not mere “glitches” in the system.
However, the Cybersecurity and Infrastructure Security Agency, a part of the Department of
Homeland Security, stated: “There is no evidence that any voting system deleted or lost votes,
changed votes, or was in any way compromised,” and described the 2020 election as “the most
secure in American history” (Tucker & Bajak, 2020).
Dominion Voting Systems has sued both Giuliani and Sidney Powell, a central figure in the
Florida litigation, in 107-page lawsuit alleging defamation. The suit, filed in the Federal District
Court in Washington on January 21, 2021, accuses Giuliani of carrying out “a viral
disinformation campaign about Dominion” made up of “demonstrably false” allegations, in part
to enrich himself through legal fees and his podcast (Quinn, 2021). The suit, seeking damages
of more than $1.3 billion, is based on more than 50 statements Giuliani made at legislative
hearings, on Twitter, on his podcast. and in various conservative news media (Corasaniti,
2021).
The appellate court concluded that “there is uncontroverted evidence” that Giuliani
“communicated demonstrably false and misleading statements to courts, lawmakers and
the public at large in his capacity as lawyer for former President Donald J. Trump and the
Trump campaign in connection with Trump’s failed effort at reelection in 2020.”
The court added that Giuliani’s “conduct immediately threatens the public interest and
warrants interim suspension from the practice of law” on an emergency basis.
Giuliani’s troubles would continue. On December 15, 2022, the disciplinary counsel of the
District of Columbia Bar Association called for Giuliani’s disbarment after a “preliminary
finding” that Giuliani had violated at least one disciplinary rule when “as the attorney for
then-President Donald Trump, he pressed a baseless, failed legal challenge to the 2020
election results in Pennsylvania.” Noted Phil Fox, a lawyer representing the D.C Bar, “This
case., the seriousness of the misconduct, calls for only one sanction and that is the sanction
of disbarment” (Stancil, 2022). Giuliani’s lawyer was instead seeking either a letter of
reprimand or a private admonition as an alternative to disbarment. Fox countered that “I
think it was a fundamental harm to the fabric of the country that could well be irreparable”
(Katersky, 2022).
Bastow (2022) commented that “The ultimate resolution for Giuliani will take some time. The
panel will send its final decision to the DC Bar in the spring, and they will make a
recommendation to the DC Court of Appeals. The DC Court of Appeals will then decide whether
or not to revoke his license.”
The Action Taken Against John Eastman
Although perhaps not as widely known as Giuliani, John Eastman’s conduct and public
statements relating to the 2020 election have not escaped scrutiny. Eastman is the founding
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director of the Center for Constitutional Jurisprudence, a public interest law firm affiliated with
the conservative think tank Claremont Institute. Eastman served as former professor
and Dean at the Chapman University School of Law. Eastman had been a clerk for Judge J.
Michael Luttig at the United States Court of Appeals for the Fourth Circuit, and later served as
law clerk to Supreme Court Justice Clarence Thomas.
In a related matter to the 2020 Presidential election, on January 26, 2023, Chief Trial Counsel
George Cardona of the California Bar announced the filing of a Notice of Disciplinary Charges
(NDC) against Eastman that could result in Eastman’s disbarment (State Bar of California
(Office of Communications), 2023). The eleven charges arose from allegations that Eastman
“engaged in a course of conduct to plan, promote, and assist then-President Trump in executing
a strategy, unsupported by facts or law, to overturn the legitimate results of the 2020
presidential election by obstructing the count of electoral votes of certain states” (quoted in
Burris, 2023).
The charges include allegations that Eastman made “false and misleading statements”
regarding purported election fraud, including statements made on January 6, 2021, at a rally in
Washington, D.C., that “contributed to provoking a crowd to assault and breach the Capitol to
intimidate then-Vice President Pence and prevent the electoral count from
proceeding.” Cardona added: “There is nothing more sacrosanct to our American democracy
than free and fair elections and the peaceful transfer of power.”
The basis of the proposed disbarment is that Eastman had drafted two “legal memos” that laid
out strategies to block then-President-elect Joe Biden from taking office by circumventing
established procedures for the counting of electoral votes. The NDC alleges that the “strategies
proposed by these memos, as well as in remarks Eastman made publicly and privately to
President Trump, Vice President Pence, and others, were unsupported by law, based on false
and misleading assertions of fact, and designed for the purpose of keeping Trump in office.”
In facts eerily similar to the allegations raised against Rudy Giuliani, the NDC also alleges that
Eastman ignored these truths when he spoke at the “Save America March” on January 6, 2021,
inciting the crowd to take action when, with the intent to convince them that the outcome of
the presidential election had been affected by fraud. Eastman maintained that “dead people had
voted” in the presidential election, that Dominion voting machines had fraudulently
manipulated the election results, and that Vice President Pence “did not deserve” to be in office
if he did not delay the counting of electoral votes (State Bar of California, 2023).
The proceedings against Eastman are unusual in the sense of their venue. The State Bar Court
of California is the only independent court in the U.S. dedicated solely to attorney discipline where
discipline matters are investigated and prosecuted by the Office of Chief Trial Attorney or OCTC,
acting on behalf of the public. The State Bar Court “oversees disciplinary proceedings and
adjudicates charges filed by OCTC.” The State Bar Court decides whether OCTC has proved
charges of professional misconduct by “clear and convincing evidence” and may recommend
that an attorney be suspended or disbarred. If a disciplinary ruling involves disbarment or
suspension, the State Bar Court’s recommendation is transmitted to the California Supreme
Court, which determines whether to impose the recommended discipline (see
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https://www.statebarcourt.ca.gov).
CONCLUDING COMMENTS AND OBSERVATIONS
An attorney need not be reminded of the serious implications of filing a lawsuit that later may
be deemed “frivolous,” or one filed “in bad faith.” In such circumstances, a court may award
certain litigation costs against an offending lawyer. In addition, the state bar association may
initiate disciplinary proceedings against an attorney who engages in conduct that is “prejudicial
to justice” or reflects upon a lawyer’s character, fitness, or ability to engage in the practice of
law.The 2020 presidential election is the prism in which courts have both awarded significant
litigation costs against both former President Trump and several of his attorneys. In addition,
the actions undertaken by two of the former president’s attorneys have resulted in their being
called before the Bar Association to account for their conduct, erroneous statements, and
unsupported claims.Although actions taken against former Mayor Giuliani and former Dean
John Eastman in their capacities as attorneys for former President Trump have yet to be
finalized, the seriousness with which investigation have thus far been undertaken, or the
actions taken against attorney Alina Habba, point unequivocally to the reality that attorneys
who violate the trust placed in them by the system of justice in the United States place both
their financial resources, livelihoods, and license to practice law in grave jeopardy.
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* Articles Previously Published in the Series
Hunter, R.J. & Shannon, J.H. (2022). Assessing confidentiality in the lawyer-client relationship: A client
perspective (Part I). Advances in Social Sciences Research Journal, 9(10): 418-430.
Hunter, R.J. & Shannon, J.H. (2022). Avoiding common conflicts of interest in the lawyer-client relationship (Part
II). Advances in Social Science Research Journal, 9(11): 119-131.
Hunter, R.J. & Shannon, J.H. (2022). The lawyer-client Relationship: Fee arbitration (Part III). Advances in Social
Science Research Journal, 9(11): 431-446.