Ethics or Ideology? Bar Associations and the Boundaries of Professional Discipline

Across the country, bar associations are increasingly at the center of legal and political controversy. Recent disciplinary proceedings—such as efforts by the DC Bar to disbar Acting OIRA Administrator Jeffrey Clark, ethics complaints against Montana Attorney General Austin Knudsen and Ninth Circuit Judge Lawrence VanDyke—have raised urgent questions about the line between professional regulation and ideological weaponization of legal licensing.
Are these proceedings neutral applications of ethical standards, or do they reflect growing pressure to use professional discipline as a political weapon? What procedural and constitutional safeguards exist to protect the federal government from state licensing authorities and to protect lawyers against viewpoint discrimination? Are these tools sufficient? How should courts, bar associations, and the legal academy understand their roles in preserving both public trust and ideological diversity within the profession?

Featuring:

James M. Burnham, Founder and Managing Partner, King Street Legal, PLLC
Michael Francisco, Partner, First & Fourteenth PLLC
Gene P. Hamilton, President & Co-Founder, America First Legal Foundation
Prof. Derek T. Muller, Professor of Law, Notre Dame Law School
(Moderator) Prof. Denise M. Harle, Clinical Professor and Director of the First Amendment Clinic, Florida State University College of Law

Episode Transcript

Speaker 1 (00:02):
Welcome to FEDSOC Forums, a podcast of the Federal Society's
practice groups. I'm Ny kas Merrick, Vice President and Director
of Practice Groups at the Federal Society. For exclusive access
to live recordings of FEDSOC Forum programs, become a Federal
Society member today at fedsoc dot org.

Speaker 2 (00:18):
Hello everyone, and welcome to this Federalist Society of Virtual event.
My name is Marco J. Lloyd, and I'm Assistant Director
of Practice Groups to the Federalist Society. Today we're excited
to host a webinar ethics or ideology, bar associations, and
the boundaries of professional discipline. Our moderator today is Professor
Denise Hartley. Professor Harley is a clinical professor and director

(00:41):
of the First Amendment Clinic at FSU College of Law,
where she leads student advocacy and litigation on free speech,
religious celebrity, and press freedom issues. Her teaching and scholarship
focuses on constitutional law, appellate practice, and First Amendment rights.
Before entering academia, Pfessor Harley was a partner at Schutznbowen

(01:02):
LLP in Tallahassee, where she was a member of the
firm's appellate practice Group and Constitutional Law practice area. Prior
to that, she served as Deputy Solicitor General in the
Office of the Florida Attorney General. Professor Harley has briefed
and argued high profile cases involving significant constitutional issues and
questions of statutory interpretation in both state and federal courts,

(01:27):
including the US Supreme Court. If you'd like to learn
more about today's speakers, their full bios can viewed on
our website fedsof dot org. If you have a question
at any point in today's program, please enter it into
the Q and A function at the bottom of your
zoom window, and will do our best to answer as
many as we can. Finally, I'll note that, as always,
the Federal Society takes no position on particular legal or

(01:49):
public policy issues, and all expressions of opinion are those
of the speakers. With that, Professor, thank you for joining
us today, and the floor is yours.

Speaker 3 (01:59):
Thank you, Marco Well.

Speaker 4 (02:00):
I'm excited to introduce our panelists today, most of whom
are pro will be not strangers to the audience. I
will just briefly give you a condensed version of their bios,
which are long and accomplished. So starting with James Burnham.
He's the founder and managing partner of King Street Legal
PLLC and President of Velacito Capital LLC. James recently returned

(02:21):
to King Street Legal after serving for six months as
General Counsel for the Department of Government Efficiency.

Speaker 3 (02:27):
She might know as Doge.

Speaker 4 (02:29):
Before founding King Street Legal, James was a litigation partner
at Jones Day, a senior official in the Department of
Justice's Civil Division and Office of the Attorney General, and
a senior Associate council to President Trump. Next we have
Michael Francisco, who currently serves as partner at First in
Fourteenth PLC, where he handles public, commercial, and constitutional litigation.

(02:54):
Prior to joining Verson Fourteenth, Michael was a partner at
Maguire Woods in Washington, d C represent litigation, white collar
and government investigation clients. Michael has also served as a
partner at MRB Law and as the Assistant Solicitor General
of Colorado.

Speaker 3 (03:13):
Next, we have Geene Hamilton.

Speaker 4 (03:14):
He's the president of America First Legal, which he co
founded and where he was previously the executive director, Executive
vice president, and general counsel. Before that, Jean served as
Deputy White House Council to President Trump. Early in his career,
Jean served as Counselor to the Attorney General at the
US Department of Justice and as Senior Counselor to the

(03:35):
Secretary of Homeland Security. He also served as General Counsel
to the Senate Judiciary Committee and held several roles at
the Department of Homeland Security, including US Immigration Enforcement, US
Customs and Border Protection, and in the Office of the
General Council. And finally, we have Professor Derek Muller, who

(03:56):
was a professor of law at Notre Dame Law School,
where he teaches election law, civil procedure, and evidence. His
research focuses on the role of states in the administration
of federal elections, the constitutional contours of voting rights, an
election administration, the limits of judicial power in the domain
of elections, and the electoral college. Professor Mueller has published

(04:18):
more than two dozen academic works, and his obeds have
appeared in The New York Times, the Los Angeles Times,
and The Wall Street Journal. He's also testified before Congress,
and he's a contributor at the Election Law Blog. Professor
Muller is a co author on a federal courts casebook
published by the Carolina Academic Press. He's also the co
reporter on the new Restatement of the Law election litigation

(04:41):
led by the American Law Institute. And with that, we'll
turn it back to our panelists for some opening remarks
to give us some of their thoughts on this hot
topic today.

Speaker 3 (04:51):
So we'll start with you, James.

Speaker 5 (04:54):
Thanks, Denise, I appreciate it. So I'm going to cover
three things.

Speaker 6 (04:57):
The ongoing bar proceedings against Jeff Clark, who I've known
for nearly a decade, and I'm going to cover that
in a bit of detail because I think it's very important,
new efforts to weaponize the bar against DJ lawyers, and then.

Speaker 5 (05:07):
A few small thoughts on what to make of it.

Speaker 6 (05:09):
So to start with Jeff, I mean, I think the
first thing we have to do is put ourselves back
in the December of twenty twenty.

Speaker 5 (05:16):
Everyone on this call, you know, I'm sure.

Speaker 6 (05:17):
Was paying close attention to the proceedings following the election
that November.

Speaker 5 (05:21):
It was crazy. I mean, it was a crazy time
on many levels.

Speaker 6 (05:25):
We were something like eight months, nine months into COVID
and there were just allegations everywhere. There was all kinds
of evidence pointing in all sorts of directions. And this
was a very very intense and passionate time for the country,
and I think it is very hard to think about
anything that happened without remembering what that time was like
and the prospect which had been asserted that the greatest

(05:46):
crime in American history, the theft of an American election,
a presidential election, had just happened. And so I just
I want to situate you, and now I'm going to
try to describe the facts, although you can probably guess
how I feel about what's happening in a somewhat dispassionate way,
because I actually.

Speaker 5 (06:00):
Think they speak for themselves.

Speaker 6 (06:01):
So where are we in July of twenty twenty two,
about a year and a half if I'm doing the math.
Right after the conduct in question, the DC Bar Office
of a Disciplinary Council filed charges against Jeff, accusing of
violating Rules eight point four AC and D of of
the DC Rules of Professional Conduct. The basic allegation centered

(06:21):
on things that Jeff had done when he was a
senior DOJ official in connection with the twenty twenty election,
and the core accusation was that he had engaged in
dishonest conduct by drafting a letter, a draft letter that
had been drafted to be sent by DOJ to Georgia,
raising significant concerns about election fraud and encouraging the legislature

(06:42):
to do some various things to remediate those problems. Now,
I want to make clear that the outset the letter
was never sent. So the entire proceeding is about so
called false statements on an internal draft circulated among senior
DOJ officials, And because it was never sent, they've had
to sho warned this into a so called attempt under

(07:03):
Rule eight point four C to make claims that they
claim are intentionally false statements.

Speaker 5 (07:08):
Okay, that's the graveman of their allegation.

Speaker 6 (07:11):
So let's cover what Jeff has said in response to that,
And as best I can tell, I'm sure I'm not doing.

Speaker 5 (07:16):
It full justice.

Speaker 6 (07:17):
But there's sort of four basic responses, and I'm going
to just kind of summarize them to give you a
sense of what his arguments are on the other side. So,
the first and foremost point he's made is, look, he
had a good faith belief that there were serious problems
and irregularities in the election. That's important because if he
had a good faith belief. Then we don't even have
to think about all the other issues here, because that

(07:40):
means the letter was drafted on the basis of a
good faith belief. Now, what the bar has said is
that he couldn't have had a good faith belief because
other DOJ officials told him there was no fraud. But
what he said is that he engaged in his own
assessment of the issues. He had done his own investigation,
and he did not agree with that and had a
good faith belief that there were serious issues. Other DOJ
officials are certainly entire to their view of the facts,

(08:01):
but I think it is but so of course as Jeff.
Jeff also took an oath to up hold the Constitution,
And frankly, I think it's rather audacious to think that
anybody in the middle of December and twenty twenty had
perfect knowledge or even complete or even somewhat complete knowledge
of what exactly had happened in that election. We're talking
about millions of votes in many states, and the idea

(08:21):
that there was sort of biblical truth in mid December
is something that I find very hard to believe. So
that's the first point they've made. The second point is
that this letter was just a draft, which I mentioned
at the beginning. It was never sent. It was part
of internal legal deliberations within the Justice Department. Now, such drafts,
in addition to only being preparatory in other words, to
spark a conversation, are typically protected by attorney client privilege.

(08:43):
At DOJ, they're often protected by executive privilege and other
sorts of privileges. These are privileged communications that are internal
to the Justice Department when the Justice Department engages in
strategizing about what they are supposed to do, what is
the right course of action.

Speaker 5 (08:58):
That's what this letter was. It was something to prompt
a conversation.

Speaker 6 (09:01):
At least that's how Jeff's described it, and that aligns
with my understanding from the outside. I wasn't a DOJ
anymore when this happened. My understanding from the outside about
the facts. Those are kind of the two main substance
of arguments. But then there's some procedural and constitutional points too.
So the third the procedural and constitutional points are that
the bar DC bar's disciplinary process is basically unconstitutional and biased.

(09:23):
It's unconstitutional because it's reaching in to try to govern
what the president's lawyers do. Inside the department, and it's
biased because the DC Bar has a political bias against
him and basically is trying to persecute him under the
guise of an ethics violation. It's also put him in
a terrible position because of different lawfare against him in Georgia,
which everyone is familiar with.

Speaker 5 (09:43):
I don't think we all know about that case.

Speaker 6 (09:46):
As a result of that, Jeff has had to invoke
his fitth Amendment writing and self incrimination here in the
DC Bar, So they're coming after his license at the
same time that different enforcement officials in Georgia are trying
to go after his liberty, which is not a position
anyone wants to be in partic regularly for some internal
letter at DJ And then the final one, of course,
is that this is politically motivated and it's really not
about ethics violations. It's not really about making sure that

(10:08):
lawyers are scrupulous in their drafts. It's about going after
people associated with Donald Trump who we're not willing to
just accept the sort of conventional wisdom in mid November
that the election was hunky Dorian, everything was fine, He's argued,
and I think this is a very plausible argument in
light of the DC Bar's conduct and the composition of
the bar, that what this is really about is punishing,

(10:30):
dissenting legal opinions, and chilling federal attorney's ability to advise
government officials. So, look, where does that leave us. I'm
going to get to the big picture concerns in a
minute about how the bars interact with federal government lawyers.
But even on a very narrow level, this just strikes
me as a massive overreach by the DC Bar. Senior
DOJ officials like Jeff who at the time was running
two components, the Environmental Division and the Civil Division, have

(10:52):
a constitutional obligation to enforce the law if they think
that massive illegality has occurred, and truly it is hard
to imagine a greater crime than rigging a presidential election.
They have a constitutional obligation and legal obligation to run
that down. Part of running that down is drafting internal correspondence,
suggesting courses of action and the like. The last thing
we want is people inside the department, inside the federal

(11:15):
government afraid to do their jobs because they're worried that
certain prevailing wisdoms among some sectors are going to come
down and take away their livelihood because they leaned in
on something where they had a good faith belief that
something horrible had happened. I think that is just not
a role that we want to live in, totally divorced
from politics. And if we even assume, which I don't assume,
that it's appropriate for state or DC bar to regulate

(11:37):
federal officials. Okay, that's Jeff. There's a second issue, which is,
having had so much fun torturing Jeff Clark, the DC
bar is now people are now trying to weaponize the
DC bar against other DOJ officials.

Speaker 5 (11:49):
So I forget the name of the group.

Speaker 6 (11:50):
I should have brought it with me, But there's a
left wing pop up group that is now filing bar
complaints against all kinds of people in the civil division,
career lawyers, political lawyers. This thing is not a litigant.
It is not a party to these cases. It is
reading the New York Times and running around and filing
bar complaints based on things that it thinks happened in
various civil litigations.

Speaker 5 (12:11):
This is a huge problem for DOJ.

Speaker 6 (12:14):
The most senior people at DJ unfortunately have to sort
of expect a certain level of harassment when they take
those jobs. Because that's just for Unfortunately the world that
we live in line lawyers in federal programs don't. These
are people that are making you know, mid to high
with one hundred thousand dollars on hundred fifty thousand dollars
one hundred and seventy five thousand dollars. Ye adds a
lot of money, not a lot of money for a

(12:35):
really highly credentialed lawyer. They work really hard. They are
not the president's political appointees. Many of them are probably
not aligned with the president or don't even have a
particular political view. And now after working, you know whatever
it is, twelve hours a day, seven days a week,
all year trying to defend the president's initiatives, they're getting
inundated with this garbage that requires them to go defend
their livelihoods in front of the DC bar. Not a

(12:57):
good dynamic. It needs to be shut down immediately. So
that brings me to the big picture, and then I'll
pass the torch. Why are state bars involved in this
at all? So there's a statue. These are federal officials
that work for the federal government. Normally they're immune to
state regulation. There's a whole concept called federal officer immunity
that says the states cannot regulate federal I mean, in essence,
cannot regulate federal officers discharging federal functions. Well, there's a

(13:20):
statute that only goes back to nineteen ninety eight, thank
you Janet Reno, that says, quote, an attorney for the
government shall be subject to state laws and rules in
local federal court rules governing attorneys in each state where
such attorney engages in that attorney's duties to the same
extent and in the same manner as other attorneys in
that state. There's actually a real question about whether this
includes DC, because the DC, of course, is not a state,

(13:42):
and I think there are very good arguments the DC
actually is not able to do this because they're not
within the provision. But let's put that aside. Let's also
put aside the wisdom of the statute, as you can guess.
I don't think it's a very wide statute. Is it constitutional?
Does Congress actually have the ability to enlist state bars
which reports state Supreme courts in the regulation of ethical conduct?

(14:03):
For federal lawyers who represent the president and have an
Article two obligation to represent the president zealously and aggressively.
There's another statute that gives the Attorney General of the
statutory authority to send whomever she wants into court on
behalf of the United States. How can state bars and
state supreme courts possibly interfere with that?

Speaker 5 (14:21):
How can Congress interfere with that?

Speaker 6 (14:23):
I don't think Congress could pass a statute that says
the president's not entitled to any lawyers. I don't think
they could say the President's not allowed to appear in court.
And so I don't understand why, or at least I
think there's a plausible argument that Congress similarly cannot sort
of conscript state bars in a similar effort to interfere
with how these lawyers do their jobs. So as you can,
as you can see, I don't think this is a

(14:44):
tenable situation. I think DOJ needs to take all action
to get involved and to remedy the situation. And I
think Jeff's ongoing proceeding and god forbid, future proceedings against
these other folks are the right place for DJ to
get involved.

Speaker 4 (14:57):
Thank you, thanks James for the really helpful unpacking of
some of the facts there. Michael will go to your
next give us some of your initial thoughts on this topic.

Speaker 7 (15:08):
Yes, happy to be a participant here on a very
important subject. I'm going to talk about what's happened recently
to the Solicitor General at Montana and others, as well
as the Attorney General at Montana. Before I get started,
I just want to say that this is a really
important subject for anybody who engages in ideological or politically
fraud litigation, i e. Anybody who doesn't make their living

(15:31):
as a lawyer working for Bank of America in Coca Cola.
This is what causes me to lose sleep at night.
It's not worrying about losing a case in court. It's
not even worrying about clients failing to pay their bill.
But it's not messing up legal arguments. What I worry
about is having my ability to practice law taken away
because of the types of cases that I engage in.

(15:52):
And it's not a hypothetical risk given what we see
in all across the country. So let's start with now
Judge van Dijk's situation and when he was the Solicitor
General of Nevada. As an interesting side note, Lawrence van
Dyke was attending a Federal Society Conference in DC about
the overregulation of occupational licensing. When he received a call

(16:16):
that the Montana bar authorities were revoking his license to
practice law in Montana in two days. They gave him
two days notice with no hearing, and the reason for
that they went after three attorneys in the Attorney Attorney
General Adam Laxalt's office and they said that a waiver
that they were operating under was only limited to one year,

(16:40):
not multiple years of practice. Well, as it turns out,
the attorneys had been aware of this rule, and Lawrence
van Dyke did not take his own conclusion in reading
the Montana rule, which could be interpreted to apply only
for one year or to apply for multiple years. He
called up the bar authorities in Nevada and said, how

(17:02):
do you interpret this rule? And they told him, oh, no, no,
we absolutely interpret this to apply for multiple years. You
don't need to take the bar now you have more
years left on your waiver. And being a decently good attorney,
Lawrence Van Dyck asked them to confirm this in writing
in an email, which they did, and those attorneys relied

(17:23):
on that email in delaying taking the Nevada bar and
having this waiver operate. This dispute ended up going up
to the Nevada Supreme Court. It resulted in a four
to three ruling where they barely retain their law licenses
nunc pro tunk and the dissenter's opinion is quite remarkable.

(17:43):
The three dissenters said that the Nevada Bar authorities interpretation
of Nevada's attorney regulation rules was so wrong that these
attorneys were unreasonable and relying on the bar's written assurance
of what the rule means. So you have to think
about that. The Supreme Court governs the office of Attorney

(18:04):
Regulation in Nevada, and sorry if I keep saying Montana,
I forget which state of Lawrence Van Dyke's Solicitor General
that we're talking about, but their own regulators they're throwing
under the bus and saying was unreasonable to rely on them.
So that's one example of what is I think clearly
a politically motivated action by the Nevada Bar at a

(18:25):
time when the Attorney General, Adam Laxall, was running for
future office to target three of his senior attorneys on
what is just an obviously unfair and incorrect theory under
the rules now the Attorney General of Montana has his
own situation that you may have heard of, Austin Knutsen.

(18:46):
This has been dragging on for quite some time and
it relates to very contentious litigation between the legislature in
Montana and the Supreme Court about the legislature changing some
of the rules regulations governing the court system in Montana,
including how they were to select judicial nominees. That resulted

(19:10):
in fraud litigation that went up to the Montana Supreme
Court about a series of emails and there were arguments
about the motivations of judges that was in that litigation.
So these are statements about the judges potentially being biased,
and you might think that that sounds unusual, but in
this case, the literal subject of the litigation was about

(19:34):
emails that judges took where they put out their opinion
that pending legislation was unconstitutional before they heard the cases.
It's really in the form of a motion to recuse
a judge for open bias. After that fight ended, it
ended in a cert petition that did not prevail at
the US Supreme Court or get granted. The legislature essentially

(19:57):
lost that fight in the court system in mont Hanna,
a California lawyer who happened to be barred in Montana,
filed a complaint and said that the rhetoric and arguments
used by the Attorney General's lawyers violated Rule eight point
two for impugning the integrity of a judge, violated Rule
three point four when they declined to file an ex

(20:20):
party tro that didn't have legal basis, and it also
violated the catch all provision that was prejudicial to the
administration of Justice. This is all litigation that happened in
twenty twenty one. There were two years of investigations, so
the public didn't even know about this pending complaint investigation
for two years. The first investigator refused to press charges

(20:44):
under these aggressive theories of the Montana Attorney Regulation rules. Effectively,
the first investigator was fired and they found a new
investigator who Shock of Shocks, returned one hundred and sixty
four count complaint against the Attorney General that was litigated
up through the attorney practice individuals in Montana, and they

(21:05):
ultimately found and recommended that the Attorney General himself should
be disbarred for ninety days as a sanction for this
conduct and just to give you a sense of how
political this has been. That opinion from the Attorney Regulation
Commission in Montana. It came out a week before the

(21:26):
Attorney General was up for reelection. They effectively rushed it
out to try to make a public spectacle of this
before his election. The opinion is a remarkable work of
sloppiness and laziness. It cites a single legal decision in
this opinion saying that the sitting Attorney General should be
disbarred for ninety days Marburie versus Madison for the proposition

(21:50):
that the attorney general is not above the law, and
so that is currently on appeal in the Montana Supreme Court.
They had a argument in the case four months ago.
It decision. There's been some change in composition of Montana
Supreme Court, so perhaps the Attorney General will be allowed
to keep his law license when he continues to be

(22:10):
the attorney general for the state of Montana. There's a
whole host of separation of powers concerns here, but it
is again another example of a very weaponized attorney discipline
process being used to go after attorneys simply for the
positions that they've advocated in cases. And the last thing
I would note is I'm aware that private attorneys, not

(22:31):
just government attorneys, are being targeted by aggressive ethical investigations.
One friend of mine has been investigated for years now
by the DC Bar, and I want to highlight the
lack of due process that is endemic to this system.
The DC Bar office is regularly using ex parte subpoenas
with threats of gag orders to prevent those who are

(22:52):
being investigated from having any sort of process or awareness
or ability to challenge subpoenas, including for attorney clients privilege.
That's just disturbing conduct. And think about Lawrence Van Dyke's situation.
You're told your bar license has gone in two days
with no opportunity for a hearing. I mean, at what
court would that fly under any legal theory of due process?

(23:15):
So I think it's a due process free zone that
we have. I took a quick look. I didn't find
any Democrat attorney generals who have been recommended for disbarment
for the wordings used in their briefs. And it seems
like all we have are hostile prosecutors who are ideologically
or politically motivated in a system that is really stacked

(23:35):
against anybody who's remotely conservative, and it's easy to ignore
that it's not happening to you, but it's happening frequently
enough across the country, not just in DC, that I
think we need to seriously take a look at it,
and if possible, get the US Supreme Court to dive in,
because they've been very reluctant to do anything about the
regulation of attorneys, but appears attorneys are not capable of

(23:57):
regulating themselves.

Speaker 3 (24:00):
Thanks, Michael.

Speaker 4 (24:00):
I have a feeling we'll circle back to the due
process questions that you're raising later in our discussion.

Speaker 3 (24:06):
Let's go to you next, Gene. Would you give us
your opening remarks on this?

Speaker 8 (24:10):
Yeah, of course, Thanks, and really good points by my
fellow panelists today. As always with James Burnham, we share
a lot of the same kind of positions and points.
I was going to speak briefly to one of the
issues that James rose, which is the Mcdatamendment, which is

(24:30):
the you know, the attempt by Congress to somehow subject
executive branch attorneys to the disciplinary authorities of applicable states
and maybe BC bar authorities. And look, maybe that has
application in certain contexts, but you know, I think if
not entirely as applied in certain scenarios. It's certainly unconstitutional

(24:54):
if you're trying to subject an executive branch attorney who
was providing advice in recommendations to the President of the
United States. I don't know how Congress could regulate attempt
to subject a bar regulator, some bar bureaucrat to be
able to make a judgment call about the advice and

(25:17):
the recommendations that are made by an attorney working for
the executive branch.

Speaker 9 (25:21):
So it's a really thorny.

Speaker 8 (25:24):
Constitutional issue, and quite frankly, I think it's one that
we need to see play out, and I think we
need to see it play out in a big way
here in the very near future, because Congress doesn't need
to be in the business of passing unconstitutional statutes. There's
other mechanisms to hold government lawyers accountable from his conduct,

(25:45):
principally by the government. There's a chain of command, and
they can be removed for lying and fraud and deceit.
And so when you think about the purpose, what is
the purpose of such a provision, or what is the
purpose of something like rule eight point four that is
replicated throughout most state bar rule regimes. Generally speaking, it's

(26:10):
to protect the integrity of the practice of law generally,
but it's not just to protect this kind of neibulous integrity.
It's really oriented towards protecting the public and ensuring that
the public is dealing with people who have candor and
they are honest and they're not going to betray a client,

(26:30):
and so that the judges and other practitioners have the
ability to trust and to understand that the representations that
are being made on the other side or by the
parties in front of a tribunal are honest, their trustworthy,
their good faith arguments to zealously advocate for a client.

(26:54):
But what they're not intended to be. And I don't
think anybody if you had gone back to these rules
were being adopted, or even some of their predecessors, or
even this would be actually be a great paper at
some point for somebody in academia to look at kind
of the history of the regulation of the practice of
law in different states and to see under what circumstances.

(27:16):
Then we're just arbitrary members of the public able to
pick up the newspaper or read something on their X
feed say ah, I don't like what that guy's saying
it seems like a lie.

Speaker 9 (27:29):
I'm going to file a bar complaint.

Speaker 8 (27:31):
I'm going to subject this person to hell from some
investigation because I think that what they were doing is lying.
I have no personal knowledge of the facts. I have
no personal awareness of anything that was ongoing. And yet
that's basically what we saw with the sixty five Project.
I don't have to put the words in their mouth.

(27:52):
You can go right to their website and you can look.
They filed over ninety complaints against various attorneys based on
an anything that they experienced themselves or that they witnessed
cases that they were a part of. Uniquely, it was
reading stories in the newspaper and targeting people and trying
to act as a deterrent to people, bustly advocating for

(28:15):
certain types of clients. Now, the sixty five Project, of course,
now it still exists on paper or at least their
website still up. It's not actually a real nonprofit organization.
It's a fiscally sponsored project, but it's morphed. And now
they have this Legal Accountability Center again, a fysically sponsored

(28:36):
project of another five oh one c four. The same
player is involved, the same people that were involved in
the sixty five project filing complaints against people in the
post twenty twenty election, are now involved in filing complaints
against Department of Justice attorneys in the Donald Trump administration
based on the same types of allegations. Oh, I saw something,

(29:00):
I heard something, I saw what you filed in court.
That seems dishonest. They have no knowledge, no knowledge of
the underlying facts, no personal awareness. And I just don't
think that if we look at a historical development of
the regulation or practice of law, that that would have
ever been envisioned by the people who are drafting these

(29:20):
rules a professional conduct, that that would be a viable
way to help regulate the practice of law and to
ensure that it stays self regulating. I can assure you
that one way to assure that it will not continue
to be a self regulating practice, a self regulating profession

(29:42):
is to permit and to allow this kind of weaponization
of the rules of professional conduct against other people just
based on disagreements. Now, I have a client that I
represented in the last year. Some of you will know
stuff on Pasentino, who was on the receiving end of

(30:02):
one of these bar complaints filed by the sixty five
project that ended up being totally baseless and tossed out.
So we filed a bar complaint against the head of
the sixty five part project based on our client, Stefan's experiences,
based on our personal knowledge and awareness of what he

(30:23):
went through, and the way in which that complaint being
filed against Defawn was a violation in and of itself,
according to our complaints, according to our reading of the
rules of the Rules of Professional Conduct. So it's never
been intended for lawyers to weaponize bar rules against each other.
There's supposed to be this candor. There's supposed to be

(30:43):
this recognition mutual respect for your adversary and agree to
disagrees to elsly advocate and go home. That's apparently no
longer good enough for a lot of members of the
legal profession, and they are out for personal destruction of
people with whom they disagree.

Speaker 9 (31:02):
So I think that we really have.

Speaker 8 (31:05):
To ask ourselves as a profession, as a self governing body,
is this permissible conduct that we're seeing. Is this the
kind of thing that leads to a better and more
just society To file baseless complaints against other lawyers based
on pure disagreements based on disagreements on the interpretation of law.

(31:30):
And I think the answer to that should be fairly
clear to most folks on this call. So how do
we get from where we are today to a world
in which we don't have to deal with these things anymore?
I think that we should look at modifications to the
rules governing the state bars. State bars should also zealously
guard their grievance procedures, and they should require some modicum

(31:54):
of personal knowledge, some modicum of some personal involvement with
the matter to be able to take disciplinary actions against
an attorney. Because it's not just the end result that
these advocates care about. They don't just care about getting
somebody disbarred, which, of course I think for a lot

(32:14):
of them say, well, this would be wonderful.

Speaker 9 (32:17):
It's to chill.

Speaker 8 (32:20):
It's to chill the willingness to take on certain kinds
of cases and certain types of clients and then to
put them through the pain of the process. It's associated
with going through a disciplinary proceeding, all the money, all
the time, all the expenses that are associated with it,
and that's harassing to another attorney if anything ever possibly

(32:45):
could be. And in certain contexts you can imagine arguments
in which, depending on the players and depending on the
actors involved, this could amount to a conspiracy to deprive
of right.

Speaker 9 (33:00):
I think that's.

Speaker 8 (33:01):
Going to be an interesting thing that we'll see play
out over time. But really and truly to see these
rules that are intended to govern and just ensure that
we're dealing with each other with candor, that when you
submit a filing in a court proceeding, that you can

(33:22):
trust the other person on the other side of the
v and the judges can trust the parties before them,
that members of the general public can trust the representations
that are being made by their own attorneys. Into a
world in which we use these rules to weaponize against
each other, I think that we've really gone astray, and
so there's a lot of course correction that needs to

(33:43):
take place. I think there's some drastic actions that are
going to have to be taken to stop this abusive practice.
And I think that the state bars should spend their
time instead taking a look at other areas of the law,
in other places where actual misconduct and fraud and misrepresentation

(34:06):
and taking advantage of clients is endemic.

Speaker 9 (34:13):
Really and truly, if anyone spend any.

Speaker 8 (34:14):
Time in the practice of immigration law, that is one
of the areas that is more rife with fraud in
abuse and taking advantage of clients and not having good
faith arguments for an extension or modification of the law.

Speaker 9 (34:30):
And yet these things go unaddressed.

Speaker 8 (34:32):
So we have state bar associations focusing entirely on the
wrong things, entirely missing massive abuses of the profession and
the practice of law, and really and truly it's very
sad to see the state that we're in today.

Speaker 4 (34:51):
I appreciate that additional context, Gene, and I hope the
academics in the virtual room wrote down your suggestion for
a large article or future research on the history of
attorney regulation, because I think that's an interesting point. Derek,
let's go to you tell us more things we should
be concerned with or help us alleviate some of our concerns.

Speaker 10 (35:11):
Sure, well, thanks, It's a privilege to be a part
of this panel. And I'm cognizant. You know, Michael talks
about the things that keep him up at night, and
as a law professor in the Ivory Tower, I understand
that my practice of law, which is essentially non existent,
looks very different from the boots on the ground approach,
thinking about the concerns that attorneys have when it comes
to the practice of law and the concerns about discipline.

(35:33):
So I want to highlights some points of agreement I think,
and some some of the overarching themes that I think
are major ones going forward.

Speaker 9 (35:38):
But also you know, sort of drilled.

Speaker 10 (35:40):
Down in a couple of things with respect to to
allegations of facts before a tribunal on the duty of candor.
You know, I think there have been some really important
procedural issues identified here at the outset. Especially, I think
James's points with respect to the Department of Justice are
really important framing issues. Likewise, Jean's points about just about
anybody filing a complaint, I think, I think the biggest
problem when we think about these complaints being filed, maybe

(36:02):
not the biggest, one of the biggest ones. That is,
can be anybody off the street, and typically we don't
allow people off the street to file complaints in the courts.
That's a generalized grievance, and the federal courts very much
do not hear those kinds of things. Usually you have
to identify some sort of tangible way in which you
were affected and so there are the situations where the
clients is affected and might file that complaint, or situations

(36:23):
where the adverse party in the case might file that
complaint or file a Rule eleven motion for sanctions things
like that. So it might be different in kind and
the kinds of reforms we might want to think about
rather than just allowing anybody off the street. And we've
seen this happen a lot in other situations with better outcomes.
I'm still harassment, but better outcomes. Right where Justices Thomas
and Kavanaugh accused of acts or conduct that subjected them

(36:47):
to deluges of complaints to the bar or to the
disciplinary tribunals, Judge William Pryor on the Eleventh Circuit hiring
a clerk, in his decision to hire that clerk was
subject to a bar complaint. I mean, there are all
kinds of things that are just this kind of barfare
where people read something in the news about somebody they
don't like and file a complaint, which results in harassments.

(37:08):
A real problem. Additionally, when we think particularly about election
litigation sort of my universe of things, we have to
be particularly sensitive in that context, especially after an election,
about what is happening in terms of the fog of war.
That is, elections are very compressed in their timeline, particularly
for elections of an executive, whether it's a president or

(37:30):
a governor. There's real concerns that the failure to file
complaints early yields mootness problems, yields latches problems. But at
the same time we know there's an ongoing duty to
supplement those claims, to revise those assumptions in the midst
of that fog of war. If we think about Bush
versus Gore, and back in two thousand, we had al

(37:50):
Gore didn't know a whole lot of what was going
on when it came to the counting of ballots, but
was filing recounts, was filing contests, was filing motions using
ambiguous state statutes in ways that maybe we're not consistent
with a generalized understanding at the time, but needed to
preserve those issues. It was ultimately successful, at least for time,
on some of those issues. And likewise, the Bush campaign

(38:11):
was pushing back with fairly novel legal theories, I would
argue at the time things that were not well established
at the time. But we wanted the attorneys to be
able to raise those points, and sure enough the Supreme Court,
a majority on one claim three justices on another, agreed
with the Bush campaign on some of these issues. We
want to be able to have those clients zealously represented
in the fog of war in a highly contentious, highly

(38:33):
uncertain situation, and be able to represent before the court
the things that they know about. But also, as the
case goes along, is the facts change to be able
to back off from some of those and move on
to the other things where the key issues are still
being preserved. Another is that when we think about these
bar complaints, we have to think about proportional discipline. I
think this is an important factor to think about. So

(38:56):
with one of the complaints that was discussed right that
there is a among some of those on the tribunal
one side, the majority side essentially saying complete disbarment for
a single false statement, and a dissenting view that said, look,
when we talk about flagrant views, we typically think that
flagrant views are not just about the importance of the matter,

(39:20):
but about the pattern of conduct. And so if we're
going to have disproportionate kinds of penalties based upon sort
of novel interpretations, of the disciplinary codes, and I think
that's a separate and independent problem that we need to
be considering and understandably, people very upset about certain things
after the twenty twenty election, and very upset about the
lidiation that took place about that, but thinking about proportional

(39:43):
discipline or proportional consequences a pretty significant one. So sort
of two last points to think about what is You know,
it has not been so long ago that we would
really come down, or at least some of us might
have really come down on misrepresentations of lawyers to a
tribunal and thinking that it was a matter of some

(40:03):
significant importance. And while we're spending a lot of time
on sort of one side of the aisle, I do
want to point out there was a former president who
was punished with five years of disbarment by the Bar
of Arkansas for misleading the court with respect to a
question about the term quote sexual relations unquote, and that
was a five year disciplinary consequence from the state Bar
of Arkansas. So there are those kinds of consequences that

(40:25):
flow from misrepresentations being made to the court with prospective facts.
And one of the things that we've seen from I
think a lot of these things, especially after the twenty
twenty election, is a lot of focus on facts and
not law. In some of the jurisdictions, there were efforts
to say that the legal theories, whether it's extensions of
Bush versus Gore, or extensions of the legislature thereof clause
or things like that, many of the tribunals have backed

(40:47):
away from finding that those are the things that should
be subject to discipline sanction. That is that novel legal
theories are the things that we do not really want
to punish, and especially even if they're uncertain or untried
or untested. For the most part, they've moved away from
those misrepresentations of laws the basis for allegations and more
toward misrepresentations effect. But when it comes to misrepresentations effect, right,

(41:09):
it's very difficult if you're dealing with reckless or knowingly.
These are not unknown terms in the criminal world, and
there's no question that is a challenge for any disciplinary
authority to try to suss out the men's raha of
those who are making the statements. And when it comes
to factual allegations, again, we have to realize that there's
a wide timeline of things that we're talking about. There's

(41:29):
a difference between factual allegations with respect to alleged improprieties
in the twenty twenty election on November ninth. From November
nineteenth to December twenty eighth to January second, there's different
sort of knowledge, different awareness, different investigation that has taken place.
So I think it's also crucial we can sort of
run that all together and say, well, it was sort

(41:49):
of the fog of war, was the totality of sort
of the post COVID post election universe. But I think
there were developments in the weeks afterward that made some
people who were skeptical of the results early in November
realize assess the evidence, and come to different conclusions. And
so as a result, I think it's helpful for the
BAR to be thinking specifically about the knowledge at that time,

(42:10):
not just what other people have said, but the evidence
that was presented, and whether or not there was contemporaneous
evidence presented beyond just sort of generalized statements or mental
impressions or whatever it might be. Again, we can ask
ourselves about the seriousness of those factual allegations. There's major
procedural problems that we might have, but I do think
with respect to factual allegations, updating your priors and trying

(42:30):
to make sure that you're representing things with candid to
the tribunal, updating your priors with respect to the weeks
of investigation that had happened prior to some of the
allegations is a material concern I think for these bars
that are investigating some of them. Plains doesn't obviate many
of the procedural concerns, but just one of the things
that I wanted to flag as well.

Speaker 9 (42:48):
So I appreciate the panel, I appreciate the conversation.

Speaker 3 (42:52):
Thanks, that's great.

Speaker 4 (42:53):
We all have raised an array of concerns, manifesting in
a variety of ways. So I think, jumping off of
what Jane mentioned about the need for course correction, I'd
love to just go down the line and pose the
same question to each one of you, which is what
procedural or constitutional safeguards do exist to protect lawyers against
viewpoint discrimination by state licensing authorities? Are these tools sufficient

(43:18):
for the current moment? Are doing easything different? James, I'll
start with you.

Speaker 6 (43:22):
Yeah, I mean the thing I've thought about the most,
and I can't say I've thought about it a ton
is the federal angle, and I just I think this
has become an issue that the Justice Department will need
to do something about because its own lawyers are under
I mean, Jeff was under assault, has been under assault
for a while, and now more lawyers are under assault
from these bar associations, And I just it is the
sort of thing that, if it has not stopped basically quickly,

(43:46):
could easily metastasize and have a seriously negative effect on
the Department's ability to do its job and to provide
capable representation of the executive branch, capable advice to the president. So,
you know, I think there could be federal supremacy a arguments.
I think there could be separation of powers arguments. I
alluded to some of those before. And you know, I'm
confident that the current Justice Department, which is which is

(44:08):
as understaffed and overworked as any DJ has ever been,
will be able to come up with some of this stuff.

Speaker 5 (44:13):
On the rest of it.

Speaker 6 (44:14):
Look, I think the people on this call and the
people who are concerned about this should put their heads together.
There are obviously good arguments. I think there are probably
good arguments for one thing. You have a First Amendment
right to not be persecuted or have your livelihood taken
away based on your viewpoint. And so the bar is
no different from any other governmental entity or quasi governmental
entity cannot do that. And so if you have a
strong claim that it is, I think that's something that

(44:36):
you could go to court to try to indicate. By court,
I mean federal court, not the state court where the bar.
The bar operates under the age of So are just
some ideas.

Speaker 3 (44:45):
Thanks Michael, What about you?

Speaker 4 (44:46):
Do you think there are any effective remedies out there
right now that can help protect lawyers against.

Speaker 7 (44:50):
The barfair Nobody told me I had came with solutions
to this webinar. I think the application of constitutional law
to the state bar process needs to be taken more
seriously by the federal courts. I mean it was only recently,
relatively speaking, that they allowed the First Amendment to allow
attorneys to advertise, and I think generally the court's attitude

(45:13):
has been to let attorneys regulate themselves. And I don't
think from a due process or a First Amendment perspective
that that's going to continue to be viable in the future.
I'm not professional ethics attorney. But a lot of this
process to me, screams out for reasonable reform at the
state level, if that's possible with these captured bars. I mean,

(45:34):
the fact that you have complaints about factual assertions or
claims and pleadings by non parties that result in sometimes
years and hundreds of thousands of dollars of harassment by
the attorneys is just madness. I mean, the courts can
police themselves in like attorney general canutsance case. For instance,

(45:54):
there was never a motion to bring sanctions. There's never
a motion to show cause. All of the conduct they're
complaining of took place in the courts, and the courts
weren't evidently bothered by that conduct. And yet you've got
four years of barfare that takes place after that, again
because some California attorney filed a complaint. And I think

(46:15):
that that kind of reform maybe needs to happen at
the state level. But at a minimum, there's some constitutional
protections that should be more vigorously enforced. Nobody wants to
bring those cases. You just want to get your job
back when you're in this situation. But I also think
the courts are a little bit to blame for not
taking these cases seriously.

Speaker 3 (46:37):
Thanks Geene. Where can we find refuge?

Speaker 9 (46:40):
It's a great question.

Speaker 8 (46:42):
I kind of inferred to something earlier, or at least explicitly,
maybe you have mentioned it, but I really do think
that each of the state bar associations need to take
a really hard look at their rules and to modify
them to prevent abuses of the disciplinary process us to
ensure that there is some factual or personal knowledge that

(47:06):
is required before the submission of a complaint. There has
to be a gatekeeping function there, and that's just the
lowest hanging fruit, addressing one aspect of what we've been
talking about today. I think that is a bare minimum requirement.
There's a lot of due process issues also that we
ought to have the bar associations consider.

Speaker 9 (47:26):
You know, it seems odd that an attorney in.

Speaker 8 (47:31):
A self relating discipline would be afforded less due process
than you know, a criminal defendant. I mean, I get
the stakes are different, of course, right, and we're talking
about the deprivation of liberty by the hands of the state,
but the deprivation of the ability to provide for yourself

(47:52):
to engage in conduct that would be covered in many
cases by the First Amendment. It seems to me to
be a very big problem that people have to consider.
I share James's view. The Department of Justice has a
strong incentive to act here to protect its own people

(48:15):
who are being subjected to unfounded complaints based on their
zealous representation of their client. And I think that they
need to come out swiftly, strongly to stop this stuff.
It's garbage. It's garbage. Is the notion that there's some

(48:38):
five oh one C. Four that is going to act
as the valiant savior of the legal profession and it's
going to stop bad things from happening by filing bar
complaints against attorneys who dare to represent their client. Of course,
this is coming from the same person. We ran advertisements

(49:02):
last fall. You can look them up. October of last year.
They were running newspaper advertisements the sixty five Projects saying
warning lawyers, don't lose your law license by working for
Donald Trump. This is stuff that they're trying to have
a chilling effect that is not constructive for the practice
of laws. There has to be a gatekeeping function that

(49:26):
is played by the state bars. But I think there
has to be a heavy hammer at some point and
there has to be a point at which, again depending
upon the actors involved, depending on the factual circumstances, where
people have to seriously consider whether or not there are
conspiracies to deprive lawyers of their rights under law. We

(49:49):
cannot just kind of pussyfoot around the situation. We have
to take this squarely on. If we care about the
rule of law, and we care about the preservation of
an adversarial system where there is an independent adjudicator at
the top of it who's adjudicating cases and controversies brought
before them, we have to make sure that we maintain
the integrity of the process. By maintaining the integrity, we

(50:11):
are not allowing it to be weaponized against each other.
We should not stand for the weaponization of disciplinary rules
against other lawyers, regardless of our views of their own beliefs,
their own clients, anything else. That just to me runs
contrary to everything that I ever learned as a law student,
as a young lawyer about the obligations of an attorney

(50:33):
to zealously advocate for their clients. So I think there
has to be solutions. I think it has to be multifaceted,
but we have to engage in the dialogue to start
working on those solutions.

Speaker 4 (50:46):
Now, Derek, same question to you, just you alluded to
it a little bit in a nutshell, what is the
strongest legal defense against.

Speaker 10 (50:53):
Barbare I mean, yeah, just very briefly, I think there
is I think a distinction to be made, or at
least to think about reform for those things that are
representations to the court versus those things that are not
that are sort of out in the wild, and so
a couple of them that we've already hit on, right,
how should we think about internal memorandas James's pointing out,
or how do we think about things like statements at

(51:17):
press conferences or political rallies or things like that.

Speaker 5 (51:20):
Again, some of these are a subject of.

Speaker 9 (51:23):
Examination and litigation.

Speaker 10 (51:27):
And you know, I think there's real First Amendment issues,
or there's real thoughts about the ability of lawyers as
lsey advocate for their clients when it's internal issues. I
think that could really speak to those matters. And when
it comes to, in contrast, litigation statements made in the
course of litigation, I think state bar is probably need
to start having a really hard assessment of the relationship

(51:48):
of something like rule three point one in many jurisdictions
and rule leven or its equivalent in the course of litigation.
That is, if the opponent has not filed that sort
of rule leven motion or requested you to retract to
what it deems to be a factual misrepresentation. If the
adversary in the process where the most to gain doesn't
do that, you know, how should we think about the

(52:10):
ability of Joe Smith off the street to show up
six months, a year or two years later and then
file essentially material I materially identical claims a rule eleven
would say under three point one to the licensing authority
and essentially say no, no, no, now you need to
step in and discipline them, even though as a part
of this litigation it didn't happen. There is a sense

(52:30):
in which if lawyers, in their professional ethical conduct decide
that some things are not worth seeking sanctions in the
course of litigation. I mean that to me is sort
of a sign that maybe there's a reason why we
can let the attorneys sort of duke it out in
court rather than it being the subject of a bar complaint.
So I don't know, I don't have a great idea
on that, except to think about that there's probably some

(52:52):
relationship between rule eleven and three point one to think
about going forward, and for bars maybe be a little
bit more hesitant in the absence of the sort of
tribunal adjudication of these kinds of disputes.

Speaker 3 (53:03):
Great, well, we have an abundance of questions in the chat,
so many so I'll pivot to that. Now.

Speaker 4 (53:09):
We have a lot that are sort of asking the
same kind of question, so just just combining them.

Speaker 3 (53:15):
One of the question themes.

Speaker 4 (53:17):
Is about mandatory versus voluntary bar associations.

Speaker 3 (53:21):
Derek.

Speaker 4 (53:21):
I know you've given some thoughts what would happen in
the absence of the ABA or bar association?

Speaker 3 (53:27):
So what would making state bars voluntary? This is for you, Derek.

Speaker 4 (53:32):
Would that be a way to solve this issue of
potential viewpoint targeting or do you think it's just going
to inevitably pop up in some other format.

Speaker 10 (53:42):
I mean, you're still going to have to be admitted
to the bar, and the question is who's the one
that's principally responsible for the discipline, whether it's starting with
the bar association and then being appealed to the state courts,
or whether it's being held in house to the state courts.
So I mean, I don't have great thoughts on this.
Maybe others who deal much more directly with these matters
have thoughts.

Speaker 5 (54:00):
The one point I will.

Speaker 10 (54:01):
Say is, I think, consistent with a lot of federal
society conversations, since issues like a BUD or other kinds
of compelled speech cases, compelled association cases, I think there's
been a move to suggest right that there shouldn't be
these sort of forced associations with bar associations, that these
should be voluntary associations. And maybe that's a reform and

(54:22):
some sort of litigation coming in the next decade, But
I'm not sure it necessarily solves the problem. It just
might relocate the problem. Now, maybe relocating it is better.
I don't know, but a lot of others think about it. Well.

Speaker 4 (54:35):
Something in the news last week it seems to cause
a lot of people's attention, which was a Ninth Circuit
descent from a denial of bond bank review related to
a district courts sanctioning of attorneys that, in the district
Court's words, was to quote send a message to litigates
not to bring certain types of election related disputes. So

(54:56):
Judge Van Dyke was in the descent, so maybe all
pitched this to you, Michael, do you see that case
as part of the politically tinged actions that we're seeing
with the state bars? Do you think this is part
of bar fear or is there a reason to worry
about courts also taking shots at lawyers and misabusing Rule
eleven sanctions, or do you think that the Rule eleven

(55:18):
sanctions are not really a component of the barfare that
we're seeing.

Speaker 7 (55:23):
I'm sure if the courts start more vigorously enforcing Rule
eleven in those ways, we'll have a panel in a
year or so about that process as well. Rule eleven
sanctions can be problematic, certainly, but it's a different type
of problem that we're dealing with here. Where you take
an attorney's livelihood and their license to practice law and

(55:43):
you put that online in a disciplinary process is very
fraud with LAS lack of protection. So it's its own
problem with Rule eleven potentially, but it's a different type
of problem than I think this problem.

Speaker 3 (55:58):
So maybe I'll fall up with you on and maybe
get some other pay lists input to. But one question.

Speaker 4 (56:03):
Is is there a reason I think that this is
an actual trend versus just kind of one off incidents
that are happening in different places at different times. And
if it is a trend, when did it start? Why,
what are the political forces behind this barfare?

Speaker 3 (56:21):
If it really is a thing.

Speaker 6 (56:22):
So I also I saw a lot of people are
asking about Professor Eastman, and so I thought that might
be a good time to kind of touch on that,
including one person I'm usually very.

Speaker 5 (56:30):
Responsive to he know, as we is. But so look,
I think the trend.

Speaker 6 (56:35):
I noticed it after the twenty twenty election because everyone
lost their minds, and you know, after the sort of
the president left office, there was obviously, I mean this
is not news, a concerted effort to go after anyone
who was involved in sort of contesting the election results.

Speaker 5 (56:50):
And Professor Eastman is obviously a good example of that.

Speaker 6 (56:53):
I don't know his case as well as I know Jeff's,
but I mean the basic allegations, as I understand it,
are that he, you know, came up with a strategy
to subvert the alliity and it's a lot of like
hortatory nonsense.

Speaker 3 (57:05):
You know.

Speaker 6 (57:06):
It talks about stuff he said in a public speech.
It talks about having you know, crazy legal theories, folks,
when we're talking about constitutional theories about the vice president's
role in tabulating electoral votes. It's pretty hard to say
that something is crazy or unfounded.

Speaker 5 (57:19):
These are not settled areas of law.

Speaker 6 (57:21):
They're not talking about, you know, alleging a tourt while
you know, intentionally omitting one element of the tourt.

Speaker 5 (57:27):
We're talking about creative constitutional lawyering.

Speaker 6 (57:31):
And it's the kind of thing where I just think
it's it's like, obviously not the sort of thing that
the state bar should be trying to destroy somebody's livelihood over.

Speaker 5 (57:39):
And the only thing I'll say is like, the.

Speaker 6 (57:41):
Most politicized situations are the ones where the bars should
be the most reticent, not the most eager.

Speaker 5 (57:46):
When everybody's worked up.

Speaker 6 (57:48):
When we're talking about you know, John Adams defending the
Boston massacre British soldiers like that, that's when lawyers are
supposed to be the most creative and the most aggressive.

Speaker 5 (57:56):
Well, they win in court or lose in court, you know,
that's what the court's going to decide.

Speaker 6 (57:59):
But it's not the kind of situation we want lawyers
to be afraid to even engage in advocacy in the
first place. Particularly in that context, we have the city
president contesting the election against the potential next president. That's
where you should want lawyers to be rushing to the field.
We need lawyers. If there are no lawyers, that it's
just going to devolve into chaos and combat, and that is,
of course the absolute opposite of what you should want

(58:20):
in a civilized country. So those are my sort of emotional,
if not super well informed thoughts on professors.

Speaker 4 (58:27):
That's great, Well, I'll give you the last regime, just
building on that, so we know the ABA and other
licensing bodies have disciplined John Eastman, Rudy Giulani, Sidney Powell,
now Jeff Clark. To what extent do these reflect enforcement
of professional norms? Is there any argument that these were
actually proper application of professional regulations or if it is

(58:52):
pure political pressure, where exactly.

Speaker 3 (58:54):
Is it coming from?

Speaker 8 (58:56):
Well, it's a really good question. I think depends on
who you ask. Of course, I'm sure the bar and
disciplinary members of each of the respective bars think that
they were doing a great duty and a great civic,
great civic duty for the general public. And I think
that if you ask the average commentator on the evening

(59:17):
news on MSNBC, they probably think that it was fabulous.
But I don't think that any reasonable person who who
is sober minded and thinks about things and thinks about
the stakes that James really highlighted. You think about the
stakes in which passions are inflamed, the kind of the
role of courts in society, the role of a tribunal

(59:40):
and impartial tribunal in society. Its duty is to make
sure that we resort to courts so that we can
peacefully adjudicate disputes. We don't need to get to a
place where people say, well, I can't make that argument
in court because I'm going to lose my law license.
Even though it seems colorable, it's actually we have some
good arguments, but they're going to come after my law

(01:00:01):
license and I can't do it. Well, what does that
mean for the non members for the bar? How are
they going to remedy their situations then? And you know,
I don't want to see that world. I think that
we all have to respect and preserve and maintain the
integrity of the profession and to be able to go
home and agree to disagree at the end of the day,

(01:00:22):
at the end of a case. But I don't think
that that's really the mindset of a lot of people
who are making these complaints, who are weaponizing these proceedings
and have kind.

Speaker 9 (01:00:34):
Of a I don't know if you.

Speaker 8 (01:00:36):
Call it, like a Napoleonic complex or a savior complex,
who think that they are going to be the person
who protects and preserves, you know, this neighbulist notion of
democracy by taking out another lawyer based on the arguments
that they make. So, you know, we could go on
for a long time. I know we're kind of over

(01:00:59):
time now, and I want to be respectful of everybody's schedules,
but I would just say that I think we really
have to be very sober minded. The bar associations really
have to be very sober minded as they approach these
various complaints, as they look at the disciplinary process, that
they would just remember what it was like when they

(01:01:20):
were learning about the practice of law, when they were
in law school, when they were young lawyers, and they
were being advised and instructed about the kind.

Speaker 9 (01:01:27):
Of the duty and the ultimate role of the lawyer
at society.

Speaker 8 (01:01:32):
And if we're weaponizing bar proceedings against one person, regardless
of the motivations behind it, regardless of the money behind it,
regardless of the actors behind it.

Speaker 9 (01:01:40):
We fall in short, and there has to be a change,
and we have to make a change.

Speaker 8 (01:01:45):
And so I would implore all of the bar associations
across the country today to start making those changes.

Speaker 4 (01:01:52):
Well, that is a powerful word to end on for today.
This will definitely be an ongoing conversation. So thank you
to all all of our panelists, to our audience, and
to the Federal Society for being part of today's event.

Speaker 2 (01:02:08):
Now I want to second the thanks for the fantastic
discussion and the benefit of your expertise today. On behalf
of the Federal Society, I'd also like to thank you
our audience for joining us. We greatly appreciate your participation.
For information on more upcoming events, please visit our website
or all major social media platforms at FEDSOC.

Speaker 5 (01:02:27):
On that note, we are adjourned.

Speaker 1 (01:02:30):
Thank you for listening to this episode of FEDSOC Forums,
a podcast of the Federal Societies Practice Groups. For more
information about the Federal Society, the practice groups, and to
become a Federal Society member, please visit our website at
fedsoc dot org.