the Future of Change

Lost somewhat amidst the events of recent days, which included the President making blatant threats against the Georgia Secretary of State asking that he overturn the results of the election in that state and “find” just enough votes that would enable Trump to ram through a victory, U.S. District Court Judge James Boasberg issued an opinion dismissing the claims in a suit that sought to throw out the results in five of the states that were pivotal in President-Elect Biden’s victory: Wisconsin, Pennsylvania, Michigan, Arizona and Georgia. For this civil procedure professor, it is a bit disconcerting to see a lawsuit filed that failed to exhibit that the lawyers behind it had any basic understanding of some of the core concepts that are taught to law students in their first year of law school, like notice, personal jurisdiction, and subject matter jurisdiction. It is no surprise that, towards the end of the court’s opinion, Judge Boasberg closes with the following line: “at the conclusion of this litigation, the Court will determine whether to issue an order to show cause why this matter should not be referred to its Committee on Grievances for potential discipline of Plaintiffs’ counsel.” Translation: this lawsuit was prosecuted so ineptly and with such disregard for the lawyers’ basic ethical obligations, it might be time to send it out for review by the body that handles lawyer discipline. According to the Preamble to the American Bar Association’s Model Rules of Professional Conduct, “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.” While I have argued elsewhere that lawyers facing crisis situations might deserve a degree of leeway from courts when those lawyers might have little time to prepare legal filings, the real crisis involving this and other lawsuits that seek to overturn the will of the American people is one of the lawyers’ own making: they are threatening to undermine faith in democracy and the rule of law itself. For these reckless acts, such conduct should receive a thorough review for its compliance with the lawyers’ ethical obligations.