This week saw a lot of coverage and debate about the decision by the Colorado disciplinary authorities to agree to a stipulated public censure for attorney Jenna Ellis who admitted that she misrepresented facts (with "at least a reckless state of mind") at least ten times during Trump’s attempts to challenge the election results in 2020, and to doing so for a selfish motive as an aggravating factor. You can read the opinion here.
A day later, however, she took to Twitter to claim that she did not admit to lying, or that she didn't lie, or something. According to her, "lying requires intentionally making a false statement" which I guess means she admitted to making misrepresentations but that she did not know what she was doing or saying at the time; or maybe that she only admitted to making misrepresentations recklessly? I don't know; it is hard to tell.
Interestingly, as reported by Steve Benen, "[a]s recently as 2016, Jenna Ellis was not a Donald Trump admirer. She repeatedly described the then-candidate as an “idiot,” adding that she considered him an “unethical, corrupt, lying, criminal, dirtbag.” Ellis even took aim at Trump’s supporters, saying they didn’t care about “facts or logic.”"
Yet, somehow, at some point I guess Ellis herself became uninterested in facts and began to misrepresent them or maybe she just did not care enough to know she was misrepresenting them or maybe she thinks it is ok to make statements with reckless disregard for the truth...? Again, it is hard to tell.
Either way, it all has now caught up with her, although only in a minimal way. And this is the first issue debated this week. Why impose such a minimal sanction, which does not include any type of suspension from practice and which she evidently felt was easy to ignore? It is hard to say, but clearly this was a settlement. The disciplinary authorities wanted to impose discipline and she did not want to risk a worse outcome. Should the authorities have tried to get a more significant penalty? I think so, but it is hard to know what limitations they were dealing with. Not knowing what the evidence and other factors were, it is hard to say if the disciplinary authorities did the right thing.
The one thing we can say is that the sanction does not seem to have had much on an effect on the lawyer's willingness to believe in facts or logic as a result, so not much has changed. As argued by Dennis Aftergut in a short piece published at Verdict,
There is honor in holding oneself to account, in admitting one’s wrongdoing when it occurs. . . .
Unfortunately, the lesson seems to have been lost on Jenna Ellis. Within hours of her censure agreement being publicized, she parsed its words and severed herself from whatever redemption she might have claimed from confessing error.
. . . .
In Ellis’s case, . . . [t]he stipulation she signed cites 10 of her false statements . . .
The stipulation then states: “Respondent has . . . violated [Rule of Professional Responsibility ] 8.4(c) (dishonesty).” It cites Colorado case law establishing that “reprimand is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer’s fitness to practice law.”
Ordinary folk could be forgiven for thinking that “knowingly” engaging in dishonest, fraudulent, or deceitful conduct by making false statements is a pretty good description of lying. “I knew my statements were false, but I didn’t intend to lie when I made them” is some heavy water to carry.
Most people who acknowledge their wrongdoing at least seek the public benefit from saying that they held themselves to account. Jenna Ellis has managed to get the worst of both worlds—being professionally sanctioned by agreement and abdicating all responsibility for her behavior.
Another issue debated during the week by some is whether the statements were protected by the First Amendment, and whether it would be valid to impose sanctions for protected speech even if the lawyer was acting as a lawyer and the statements were made in order to advance the interests of a client. This is an interesting question that may have played a factor in the Colorado authorities decision to settle the case rather than to risk having to litigated further.
Dennis Aftergut mentions this issue in his piece also:
Ellis’s statements . . . were made in the media and purely for political purposes. First Amendment protections broadly apply in these arenas, and—whether you agree or not—some of the country’s foremost legal experts believe that free speech rights raise formidable barriers to disciplining lawyers who deliberately engage in political lies.
But now, thanks to Jenna Ellis, we have a discipline case on the record against a lawyer whose only misconduct was in misleading the public in the public square. . . .