Model letter to the America Bar Association (ABA)

Dear American Bar Association,

Our Founding Fathers intentionally created a system of government where the law was supreme – where all are equal under the law and the law is the ultimate authority. They established our nation in this way to avoid the pitfalls of every other system of government in the history of humanity – systems which pledged their allegiance to a singular monarch, or a singular faith or system of belief. The Founding Fathers of our nation have been a light of hope to people throughout the world for the past 250 years for their vision of a diverse nation which could resolve its differences and govern and provide for its people on the basis of the respectful exchange of ideas. A nation governed by a system of laws, rules, and regulations which would ensure an equal playing field for all members of the country. And thus, our legislators must serve as a guiding light for us all, setting a standard for reasoned discourse. How much more so, should those legislators who are license attorneys.

On Wednesday, Jan. 6th, 2021, Americans watched in horror as armed anti-democratic rioters, incited by claims of a “stolen” election by our own president, took over the Capitol Building. But Mr. Trump wasn’t solely responsible for this act of insurrection. His disinformation campaign has been ably encouraged and amplified by Congressional seditionists since the November election. Unfortunately, our nation’s most effective promoters of the president’s “allegations” of fraud over the reality of a well-run election are legislators who also happen to be lawyers, whose position of public trust make their behavior far more dangerous than that of non-lawyer legislators.

We want more from you: From 1953 until 2017, your organization took on the responsibility of providing influential ratings of those who would judge us from federal benches. However, when it comes to disciplining lawyers who violate laws or ethics codes, your organization doesn’t directly intervene, leaving that work to the judiciary and state bar agencies. However, we, the public, watched congressional lawyer/legislators mendaciously grandstanding up to the moment the Capitol’s doors were breached by rioters, and then continuing after the halls were finally cleared. We watched these lawyer/legislators ignore the Constitution, ignore their own ethical codes, and ignore the results of 60 court cases and the opinions of 90 federal and state judges. What are we, the public, to do when the legal profession’s system of self-policing fails? First, let’s examine the responsibilities of good lawyer/legislators, their right to free speech, and then examine the effectiveness of your two suggested remedies to bad actors within the profession.

Why we picking on the lawyer/legislators?: Because our nation is built on a system of laws, lawyers have a particular public trust. Eliot T. Tracz, in “Lies, Liars, and Lawyers as legislators” An Argument towards Holding Attorneys Accountable for Violating the Model Rule of Professional Conduct 8.4(c) Whilst Acting in a Legislative Role” stated “Many of the Founding Fathers were lawyers, and since the early days of the United States, lawyers have played a pivotal role as legislators in our government. As lawyers elected to public office, lawyer-legislators hold the trust of the public and are expected to fulfill the ideal that has been termed the lawyer-statesman.” All lawyers swear an oath to support and defend the Constitution. All legislators swear an oath to the Constitution. Thus, those who are both lawyer and legislators hold a double trust. In addition, lawyers swear an oath to uphold their state laws as well as to comply to state professional ethics rules, often based directly on your Model Rules of Professional Conduct Rule 8.4. (Comparison between state and model rules here.) Thus, when lawyer/legislators advocate lies, violence, and public attack of our orderly system of laws, they must be held accountable. And be seen to be held accountable by their own profession. Lawyers are now at risk of losing the public trust, and deservedly so.

Why can’t lawyer/legislators lie?: Eliot E. Tracz, in his paper “Lies, Liars, and Lawyers as Legislators,” states that lawyer/legislators have the same freedom of speech as non-lawyers during legislative sessions. However, in the public sphere, the legal profession’s Canon of Ethics, such as Rule 8.4(c) , should have prevented lawyer/legislators from echoing Trump’s fact-free allegations in the same manner enjoyed by non-lawyer colleagues. The court in In re Woodward held: “[a] layman may, perhaps, pursue his theories of free speech of political activities until he runs afoul of the penalties of libel or slander, or into some infraction of our statutory law. A member of the bar can, and will, be stopped at the point where he infringes our Canon of Ethics; and if he wishes to remain a member of the bar he will conduct himself therewith.” If they hadn’t spend years parroting the lies of a corrupt and lawless president to their constituents, Cruz, Hawley and other lawyer/legislators wouldn’t have felt pressure to violate their oaths and the Constitution and steal other people’s votes while in their legislative houses.

“Judicial review” remedy: Lawyer/legislators Senator Ted Cruz (T-TX) and Josh Hawley (R-Mo.), both knowledgable enough in the law to have clerked for SCOTUS justices, have promoted election fraud “allegations” directly to a national stage, bypassing any form of judicial review. And neither lawyer/legislator Rep. Louie Gohmert (R-TX), with his bizarre GOHMERT v. MICHAEL R. PENCE lawsuit, nor any of the 17 attorneys general and 32 lawyer/legislators who signed the amicus brief for TEXAS v. PENNSYLVANIA, a case described both as “a mockery of federalism and separation of powers,” and a “seditious abuse of judicial process” suffered any sanctions by the judges involved. In fact, judicial “Rule 11 sanctions” appear to be very rare, especially for cases involving politics, so this “remedy” is pure misdirection on your part.

“State agencies” remedy: Rep. Bill Pascrell had to apply to five different states to cover the antics of Rudy Giuliani and friends. It is patently absurd to expect every concerned American to sift through the 126 legislative signers of TEXAS v. PENNSYLVANIA for those with law licenses (here) and require that they send letters to multiple bar associations for justice to be done. Similarly to judicial sanctions, state bar actions to discipline bad actors in politically-tinged cases are more of a concept than a fact, as Pascrell’s cases appear to be going nowhere, despite 1,500 lawyers having already contacted you to support him. Depending on stage agencies to deal with national situations involving multiple errant lawyer/legislators will also lead to unequal resolutions, where one member is appropriately sanctioned by his/her state agency, while an equally complicit compatriot from a laxer state walks away untouched.

So what are we accusing them of?: Lawyer/legislators have set this country on fire with their amplification and legitimization of Trump’s desperate campaign of lies. They’ve also indulged in legislative theater by objecting to state-approved Electoral College votes, an abrogation of their sworn constitutional responsibilities. We charge all these lawyer/legislators referenced above with the following violations:

• Reckless disregard of the voting rights of millions of American voters and attempted theft of those votes on false pretenses. Since voters contributed billions of dollars of funding to candidates whose wins would be summarily overturned, we also charge monetary theft as well.
• Rule of Professional Conduct 3.1, which requires 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 8.4(c) the “Dishonesty Rule,” instituted after the Watergate cover-up, which prohibits lawyers from engaging “in conduct involving dishonesty, fraud, deceit or misrepresentation.”
• Section 3 of the Fourteenth Amendment – “No Person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.“
• Article II and the 12^th Amendment. Rep. Liz Cheney (R-WY) warned her GOP brethren that “Objecting to these electoral slates would unavoidably assert that Congress has the authority to overturn elections and overrule state and federal courts. That would set an exceptionally dangerous precedent, threatening to steal states’ explicit constitutional responsibility for choosing the President and bestowing it instead on Congress. This is directly at odds with the Constitution’s clear text and our core beliefs as Republicans...Nothing in Article II, the 12^th Amendment or any other Constitutional text provides for any debate, objection or discretionary judgments by Congress in performing the ministerial task of counting the votes.  Nothing in the Constitution remotely says that Congress is the court of last resort, with the authority to second-guess and invalidate state and federal court judicial rulings in election challenges.   Indeed, the Constitutional text reads: “The person having the greatest Number of [Electoral College] votes for President, shall be the President.”   It does not say: “The person having the greatest Number of [Electoral College] votes for President, shall be the President, unless Congress objects or Congress wants to investigate...”

Why we’re writing to you: Referencing your own “Lawyer Regulation for A New Century (2018), you appear to be sensitive to how the public regards your profession. and concerned that, angered enough by recent actions like lawyer-led sedition, “the public may remove the authority of the judiciary to regulate lawyers.” Yes, we will, since that remedy appears to be completely ineffective. What has happened to our country at the hands of lawyer/legislators has been devastating and may take a generation to heal. We, the American people, are asking you to use your influence to embolden state bar agencies. We are asking both you AND state bar agencies to call to account all lawyer/legislators who’ve abused the public trust for political gain, dividing our country and inspiring acts of domestic terrorism.

What we’re asking you to do: While we, the non-lawyer public, are busy googling the definitions of sedition, treason, the 25th Amendment and impeachment, wondering why lawer/legislators like Senators Cruz and Hawley are practicing legislative terrorism with seeming impunity, you have a nationwide database of all licensed lawyers, the ABA Center for Professional Responsibility, ABA Standing Committee on Professional Discipline and “Model Rules of Professional Conduct” to get you started. All you’re missing is the will to use them effectively against errant congressional lawyer/legislators. We suggest these basic actions:

• Speak with your membership and speak up for what is right. Seek to bring accountability to those lawyer legislators who sought to topple our government, either by trampling the Constitution, or by mob violence and brute force.
• Publicly condemn, by name, every lawyer/legislator who participated in this disgraceful disinformation campaign against the integrity of our elections. This includes every lawyer/legislator who signed irresponsible amicus briefs, who spread falsehoods online or through news media, and who participated in the objections to electoral votes in Congress. Publish it through several national news organizations.
• Notify every lawyer/legislator’s home agency that they have violated professional ethics and should be sanctioned. Don’t wait for us. You have the database, these are your people and this is your responsibility. Follow up and publish the results of state actions on your website and through news organizations.
• Recommend that every state bar regularize and computerize their complaint mechanism. Requirements for lodging a complaint at the 31 DIFFERENT AGENCIES charged with monitoring those responsible for this national debacle vary widely from simple online forms to those that must be mailed in and even notarized.
• After you’ve finished these immediately achievable actions, create the necessary and long overdue national, bi-partisan organization required to discipline congressional lawyers/legislators who commit political mischief on a national level, a mechanism that doesn’t currently exist on a practicable level. Seriously, 31 DIFFERENT AGENCIES!
• If lawyer/legislators complain that being aggressively held to higher standards of honesty disadvantages them against their non-lawyer colleagues, encourage them to use their professional skills to create or increase enforcement of ethics rules for those who are not lawyers as well. In an age where adherents of conspiracy theories considered domestic terrorist threats by the FBI, such as QAnon, now hold congressional office, this could not be more important.
• Make Rule 8.4:(g) “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law,” mean something when it applies to creating or voting on legislation. Lawyer/legislators who promote laws or participate in other legislative actions known to adversely affect minority citizens more harshly than others should be held to this professional standard as well.

George Washington, though not a lawyer himself, spoke eloquently in 1796 about legislative responsibility, in words that echo through the events that happened at our Capitol 225 years later:

“The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government.
All obstructions to the execution of the laws, all combinations and associations, under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle, and of fatal tendency. They serve to organize faction, to give it an artificial and extraordinary force; to put, in the place of the delegated will of the nation the will of a party, often a small but artful and enterprising minority of the community; and, according to the alternate triumphs of different parties, to make the public administration the mirror of the ill-concerted and incongruous projects of faction, rather than the organ of consistent and wholesome plans digested by common counsels and modified by mutual interests.
The common and continual mischiefs of the spirit of party are sufficient to make it the interest and duty of a wise people to discourage and restrain it.
It serves always to distract the public councils and enfeeble the public administration. It agitates the community with ill-founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection. It opens the door to foreign influence and corruption, which finds a facilitated access to the government itself through the channels of party passions. 
In offering to you, my countrymen, these counsels of an old and affectionate friend, I dare not hope they will make the strong and lasting impression I could wish; that they will control the usual current of the passions, or prevent our nation from running the course which has hitherto marked the destiny of nations. But, if I may even flatter myself that they may be productive of some partial benefit, some occasional good; that they may now and then recur to moderate the fury of party spirit, to warn against the mischiefs of foreign intrigue, to guard against the impostures of pretended patriotism; this hope will be a full recompense for the solicitude for your welfare, by which they have been dictated.
I anticipate with pleasing expectation that retreat in which I promise myself to realize, without alloy, the sweet enjoyment of partaking, in the midst of my fellow-citizens, the benign influence of good laws under a free government, the ever-favorite object of my heart, and the happy reward, as I trust, of our mutual cares, labors, and dangers.”

We, the people, are asking you to do your part to ensure that only the most ethical and trustworthy lawyer/legislators are allowed seats in our halls of power.

Thank you for your consideration. I look forward to your reponse.

Respectfully,

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