Saturday, January 16, 2021

Over 7,000 Lawyers Sign Petition To Have Josh Hawley And Ted Cruz Disbarred

When Ted Cruz and Josh Hawley supported the effort to object to the electoral college, Yale and Harvard alums started internet petitions to have them disciplined.  Now, after their expressions related to the attack on the capitol have been exposed, a new petition has been published asking for their disbarment.  

The petitions are really an expression of frustration and political statements more than ethics arguments.  Whether the conduct deserves discipline depends, of course, on whether it violated the rules of professional conduct and the answer to that question is more complicated than the petitions make it appear.

First of all, if the argument is based on expressions made during the legislative process, I believe lawmakers are immune from liability and I don't know if there is any case law that explains whether that includes immunity from disciplinary sanctions.

Second, the arguments are based mostly, if not entirely, on speech which raises the question of whether the expressions are protected speech, which depends on the expressions on a case by case basis.

Having said that, let's assume that the expressions are considered not protected because they constitute incitement to violence or, worse incitement to overthrow the government.  If that is the case, do the expressions violate rules like Model Rule 8.4(b) which hold that it is professional misconduct to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects?

The petitions also argue that Hawley and Cruz violated rules like 8,4(c) which holds that it is misconduct to engage in conduct involving dishonesty, fraud, deceit or misrepresentation by repeating unsubstantiated statements regarding the election.

You can read one of the petitions against Cruz and Hawley here.  Jurist also has the story here.

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