Trump’s Efforts To Overturn The Election Could Be Trouble For Lawyers Who Participated — Even In Kansas

By Mike Hoeflich, the Kansas Reflector

December 29, 2020

The Kansas Reflector welcomes opinion pieces from writers who share our goal of widening the conversation about how public policies affect the day-to-day lives of people throughout our state. Mike Hoeflich is a professor at the University of Kansas School of Law.

President Trump’s efforts to overturn the results of November’s election provoked a legal circus, and a movement to hold accountable the lawyers who participated has already begun.

After the election, lawyers filed more than 50 lawsuits on behalf of Trump, his campaign and other plaintiffs, virtually all of which were unsuccessful.

Many of these suits have drawn the ire of the judges who presided over them, often prompting comments that these lawsuits filed by the plaintiffs were sloppily drawn, factually incorrect, and devoid of valid legal claims. They have drawn criticism from the media and many members of the legal profession. They have led some people to believe that the legal system is unable to cope with such seemingly meritless suits. This is incorrect.

John Mettner, a Topeka attorney, published a letter in the Topeka Capital-Journal on Dec. 20 expressing his deep concerns about the involvement of state attorneys general — including Kansas Attorney General Derek Schmidt — in some of the suits to overturn the election results, including the Supreme Court suit against Pennsylvania.

“I believe that he along with all the other attorneys in other states and in the U.S. House of Representatives should be reviewed for violations of each of their state ethics rules that govern all attorneys through out the U.S.,” Mettner wrote.

Mettner’s concerns — and those of other lawyers around the country — cannot be dismissed as solely politically motivated. The lawyers who have brought some of these suits may have exposed themselves to possible sanctions both by courts and by state disciplinary authorities.

The Federal Rules of Civil Procedure prohibit the filing of frivolous lawsuits, and the Kansas Code of Civil Procedure states that when a lawyer signs a court pleading she certifies to the best of her knowledge that “it is not being presented for any improper purpose, such as to harass, cause unnecessary delay or needlessly increase the cost of litigation,” that its claims “are warranted by existing law or by a nonfrivolous argument” and that “factual contentions have evidentiary support,” among other things.

In addition, the Kansas Rules of Professional Conduct for lawyers, which closely mirror on this issue the model rules adopted in most American jurisdictions, state that a lawyer shall not file a suit “unless there is a basis for doing so that is not frivolous” and “includes a good faith argument.”

In Kansas, individuals may file a complaint about lawyer violations of the Rules of Professional Conduct. In addition, Kansas rules also require any lawyer who is aware of a fellow attorney’s violation of those rules to “inform the appropriate professional authority.” The rules in most other states are similar. And this, of course, is critical.

If the lawyers who filed suit on behalf of the president cannot demonstrate that the suits were brought in good faith and are based on provable facts, then they are at serious risk of discipline by the bar and the courts, discipline that can range from private censure all the way up to disbarment.

There is a great deal of law on this subject, so disciplinary authorities will not be treading on new ground in deciding these cases. There is a long-standing prohibition in Anglo-American law against what is called “abuse of process” or “malicious prosecution” by lawyers and clients.

One cannot bring a frivolous lawsuit simply to harass opponents or to achieve a political end not supported by the facts and the law. If the lawyers who have been bringing these suits cannot show that the suits were brought based either upon existing law or in a “good faith” attempt to change existing law, then they are at risk of discipline. It will be up to the courts and disciplinary authorities to decide this.

Mettner’s letter is not the only recent expression of concern about the attorneys who have participated in the post-election litigation on behalf of the Trump campaign. The movement to hold accountable lawyers involved in this post-election legal circus is gaining traction nationwide. On Dec. 4, the American Bar Association issued a fact check on this subject, which reports that disciplinary complaints have already been filed against lawyers involved in the litigation in five states.

I believe that we will see more complaints filed in the weeks and months to come. How these complaints are resolved will tell us much about the health of our legal system and of our republic.

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