Monday, August 30, 2021

I’m not a lawyer, but I DID stay at a Holiday Inn Express last night

John Pierce, a high-profile conservative attorney who is representing a number of the January 6 defendants has apparently been hospitalized for a couple of weeks and has not been communicating either with his clients or the court. 

Attempting to step in to temporarily take his place in these cases has been Ryan Marshall, an associate from Pierce’s law firm who is not a licensed attorney. According to the Assistant U.S. Attorney, Marshall has been appearing at court hearings and meetings with the government “for roughly the past week.” 

The U.S. Attorney’s office is requesting that proceedings against these defendants be stalled until they are represented by a licensed lawyer. 

This is not a frivolous matter. Non-lawyer associates are often knowledgeable people, but that is not the point. A defendant deserves the protection that only a licensed lawyer can provide, including, sadly, legal recourse in cases of malpractice. 

It says something about the quality and integrity of the U.S. Attorney’s office that they have been proactive (even though not required to do so) in ensuring that the defendants in the January 6 cases are represented appropriately.

Friday, August 27, 2021

As an attorney, “Ignorance is not bliss—it is sanctionable”

Michigan District Court judge Linda Parker has ruled that the lawyers who filed the election fraud case in Michigan should be sanctioned. Her 110-page ruling is extraordinary in its detail and legal reasoning. 

The net result for Sidney Powell, Lin Wood and the other plaintiffs’ attorneys is that they must pay the other side’s attorneys fees, take continuing legal education classes, and face possible disciplinary actions, including possible disbarment, in their home states.

I can’t do justice to the intricacies of Judge Parker’s analysis in a brief note, but the ruling boils down to this: attorneys are responsible for what they file in court, they are presumed to know both the court rules and the laws that they are challenging and, most importantly, you never lie to the court. 

The Michigan lawsuit, which contained large elements that were cut-and-pasted from other state lawsuits, had dramatic shortcomings. The most notable was the complete failure of plaintiffs’ lawyers to perform even the most basic “due diligence.” In other words, these lawyers made little or no attempt to determine whether the claims could even arguably be supported. Furthermore, even when what they were asking for in the complaint was no longer feasible, they kept the case going. 

The actions of these lawyers were simply unconscionable. It is one thing to be merely incompetent. It is another entirely to purposely use the courts to promote their personal ends. 

The response by some of these sanctioned lawyers and members of the right-wing media has been boring in its predictability. The brilliance of Judge Parker’s ruling is that she anticipated—and answered—the hand-wringing responses that are being spouted. From the opinion: 

“Journalists”—like attorneys, Powell argued—“must be free to rely on sources they deem to be credible, without being second-guessed by irate public figures who believe that the journalists should have been more skeptical.” 

Of course, Powell missed the most essential point. 

Attorneys are not journalists. It therefore comes as no surprise that Plaintiffs’ attorneys fail to cite a single case suggesting that the two professions share comparable duties and responsibilities. 

The Court also addressed the argument that the lawyers have First Amendment (free speech) rights that would be seriously undermined by the issuance of sanctions. 

Plaintiffs’ counsel’s politically motivated accusations, allegations, and gamesmanship may be protected by the First Amendment when posted on Twitter, shared on Telegram, or repeated on television. The nation’s courts, however, are reserved for hearing legitimate causes of action. 

What Judge Parker’s decision demonstrated (in painstaking detail) is that there are plenty of public forums to peddle your conspiracy theories where they can be eagerly lapped up by people devoid of analytical capacity. However, when you come to court, you must follow the exacting rules to establish the truth. 

Trump’s lawyers failed to uphold even the minimal professional standards expected of attorneys. And they will now pay for their chicanery. 

Addendum. Judge Parker was appointed by a Democratic president. According to some, that means that her decision is politically motivated. That is an interesting but deluded argument, especially if you read the opinion. Had her intention been partisan, she would have taken a vindictive stance. She did not. In fact, one lawyer who asked for attorneys’ fees was denied them. The reason? Judge Parker noted that his participation did not add anything meaningful to the lawsuit. Had the judge been a political hack, she would not have been so careful in meting out the penalties.