Thursday, August 26, 2021

Breaking News: Michigan judge imposes sanctions on nine attorneys for the Trump campaign

Back in July and earlier this month I reported that a Michigan judge held a hearing on whether to impose sanctions on the lawyers who represented Trump's campaign in a lawsuit challenging the results of the presidential election.  See here

Earlier tonight, the judge issued her opinion and in it she imposes sanctions on Sidney Powell, Lin Wood and seven other pro-Trump lawyers.  The opinion is 110 pages long and everyone seems to agree that it is "scathing."  You can read it here.  

In the end, the judge holds that the lawyers engaged in misconduct for filing a lawsuit for an improper motive and imposes sanctions under Rule 11 of Civil Procedure, 28 U.S.C. § 1927 and as justified by the inherent power of the court.  Here is the beginning of the opinion (excluding footnotes):

... America’s civil litigation system affords individuals the privilege to file a lawsuit to allege a violation of law. Individuals, however, must litigate within the established parameters for filing a claim. Such parameters are set forth in statutes, rules of civil procedure, local court rules, and professional rules of responsibility and ethics. Every attorney who files a claim on behalf of a client is charged with the obligation to know these statutes and rules, as well as the law allegedly violated.

Specifically, attorneys have an obligation to the judiciary, their profession, and the public (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.

This matter comes before the Court upon allegations that Plaintiffs’ counsel did none of these things. To be clear, . . . the question before the Court is whether Plaintiffs’ attorneys engaged in litigation practices that are abusive and, in turn, sanctionable. The short answer is yes.

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 pre-filing 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.

While there are many arenas – including print, television, and social media—where protestations, conjecture, and speculation may be advanced, such expressions are neither permitted nor welcomed in a court of law. And while we as a country pride ourselves on the freedoms embodied within the First Amendment, it is well-established that an attorney’s freedom of speech is circumscribed upon “entering” the courtroom.

Indeed, attorneys take an oath to uphold and honor our legal system. The sanctity of both the courtroom and the litigation process are preserved only when attorneys adhere to this oath and follow the rules, and only when courts impose sanctions when attorneys do not. And despite the haze of confusion, commotion, and chaos counsel intentionally attempted to create by filing this lawsuit, one thing is perfectly clear: Plaintiffs’ attorneys have scorned their oath, flouted the rules, and attempted to undermine the integrity of the judiciary along the way. As such, the Court is duty-bound to grant the motions for sanctions filed by Defendants and Intervenor-Defendants and is imposing sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure, 28 U.S.C. § 1927, and its own inherent authority.

The sanctions included the payment of a reasonable amount for attorneys fees and costs, mandatory continuing legal education in the subjects of pleading standards and election law, and 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.  

For commentary, take a look at NPR, Politico, and Faughnan on Ethics.

UPDATE (August 29):  More coverage here.

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