Statement

Attorneys General and Congressional Representatives’ Unethical Behavior

June 28, 2021

December 14, 2020

Editorial credit: Alex Brandon/​AP/​Shutterstock

As lawyers committed to the rule of law, we condemn the action taken by 18 state Attorneys General, and joined by 126 Republican members of Congress, asking the Supreme Court to overturn election results in four battleground states in which President-elect Biden prevailed. The historically unprecedented attack on our democracy needs to be met by historically unprecedented state bar investigations.

We call on state licensing authorities to promptly investigate the breach of ethical rules by these public officials and all lawyers participating in the filing of this Supreme Court petition (“the Petition”).

They must not shrink from applying established ethical rules to discipline those officials. 

Josh Shapiro, Pennsylvania’s Attorney General, rightly called the Petition filed by Texas Attorney General Ken Paxton a “seditious abuse of process.” It had no legal or factual basis. The action sought to negate the votes of millions of fellow Americans, delegitimize a duly elected incoming President, and undermine the foundation of the Republic: citizen’s trust in the validity of our elections.

The state Attorneys General who joined Paxton’s abusive lawsuit, and the lawyer members of Congress who endorsed it, are guilty of serious ethical misconduct. ABA Model Rule of Professional Conduct 3.1, adopted in one form or another by states throughout the country, provides: “A lawyer shall not bring or defend a proceeding unless there is a basis in law and fact for doing so that is not frivolous . . . .”

The Supreme Court swiftly agreed that the Petitioners failed to satisfy the threshold issue of standing. As Pennsylvania responded, “Texas has not suffered harm simply because it dislikes the result of the election.” 

In addition, the Petitioners provided no evidence of widespread fraud, rehashing the same allegations uniformly rejected by more than 40 state and federal judges. The legal claim was incoherent.

As the Republican Attorney General of Ohio wrote, “The relief that Texas seeks would undermine a foundational premise of our federalist system: the idea that the States are sovereigns, free to govern themselves.“

There is reason to question the motivations of the litigants in filing these frivolous actions. The Republican Party and President Trump have raised over $200 million via this fraud on their supporters. Attorney General Paxton, who is under state indictment and federal criminal investigation, may well have his own motive for this filing – seeking the favor of a President who can pardon him. The other public officials who joined or signed onto the Petition placed their loyalty to President Trump or their own political self-interests above the oaths they have taken as lawyers and public servants. 

Those oaths oblige them to uphold the Constitution. The Attorneys General and Congressional representatives did just the opposite. The Petition represented an attack on the vote itself, the central pillar of our Republic. 

State Attorneys General are not exempt from lawyers’ ethical duties. State and local Bar associations and the leaders of the Bar need to publicly condemn this behavior. Licensing authorities should hold these elected officials accountable. 

As fellow lawyers, we repudiate this misconduct. It brings shame on the nation, our profession and the public officials who participated in this unethical and anti-democratic action. 

We commend the Republican state attorney generals and members of Congress who opposed or declined to join the Paxton suit. We also honor the state and federal court judges across the country who properly dismissed unfounded election claims expeditiously. We are grateful to our judiciary for upholding the rule of law with speed and clarity.

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