As regular readers know, I am not sanguine about those lawyers whose conduct in public affairs raises issues of ethics and professional responsibility. It was early in the last administration that I wrote about the lawyers of Watergate and the fact that almost two dozen of them ended up sanctioned, including disbarment.
Over the past four years, a lot of lawyers have been engaged in the life and administration of the last president. A number have supported and cooperated, while some have eventually pushed back. A few days ago, for example, his legal team in the upcoming impeachment trial resigned, apparently over the defense he demanded they offer. A new team has been hired at the last minute.
There are far too many questionable situations and lawyers to mention. They range from the top of the government justice pyramid to other administration members and advisers to private attorneys who have served on his behalf in various initiatives and disputes. And yes, that includes some U.S. Senators who are as well-educated in the law (Harvard, Yale, Oxford, plus Supreme Court clerkships) as any in the country.
There is a tension between zealous advocacy and professional responsibility. Zealous advocacy demands that you do everything possible to serve the interests of an individual you represent. Professional responsibility demands that your zeal be tempered by considerations including truthfulness, respect for the law and judicial process, and the integrity of the courts and the profession. Sometimes the line is bright (knowingly lying to a court for instance), but frequently fuzzier. That’s when professional arbiters are moved to investigate and determine whether lines have been crossed and sanctions are appropriate.
A number of times over the past four years, lawyers and scholars have come forward to question whether attorneys involved with the last president have crossed professional lines. They wonder, as I have, whether and when the appropriate bar associations will be looking at the conduct, if looking at all.
I commend a recent piece from the American Bar Association, Baseless lawsuits bring model rules into focus. It is written by Teresa J. Schmid, current director of the ABA Center for Professional Responsibility, and past executive director for the Oregon State Bar and for the State Bar of Arizona.
She closes with some hope for those who wonder if anything might ever happen regarding possibly frivolous lawsuits:
An additional cause of some frustration for those who want to know what disciplinary agencies, including mandatory bars, are doing is confidentiality. Many disciplinary systems have rules that maintain confidentiality during the investigative stage of a disciplinary complaint. Many unified bar associations and other disciplinary agencies throughout the country are undoubtedly in triage mode, well on their way to disciplinary proceedings.
So why is nothing happening in lawyer regulation? Actually, maybe something is.