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Jones Day, Porter Wright Tiptoe Ethical Line in Voting Suits (1)

Nov. 10, 2020, 11:50 PM; Updated: Nov. 11, 2020, 2:17 AM

The two law firms leading Trump-aligned court fights in Pennsylvania are facing public criticism, but the low bar for filing a lawsuit means they likely have some room to roam without crossing ethical boundaries.

“We all know anybody can sue anybody for just about anything,” Jan Jacobowitz, a legal ethics professor at the University of Miami told Bloomberg Law. “The fact that the courts are dismissing many of these actions doesn’t necessarily mean that the lawyers didn’t have a reasonable basis for the suits.”

Jones Day, the outside firm most closely identified with the Trump administration, and Ohio-based Porter Wright have become the face of Republicans’ last ditch effort to challenge the ballot count in the Keystone State. The campaign and others have also filed suits across the country, claiming that mail-in ballots may have been tampered with and that election monitors were being illegally hindered. Several of these complaints already have been tossed by state and federal judges.

In response, the firms have been targeted by advocacy groups like the Lincoln Project and reportedly some of their own lawyers. They say the firms are causing long-term damage by pushing a baseless assault against the election results.

“This is a real reputation disaster for Jones Day; both with staff and with their #Fortune500 clients, especially those with consumer brands,” Republican strategist and Trump critic Mike Murphy said in a tweet early Tuesday morning. “Do they want to be associated with key lawyers in Trump effort to destroy faith in US elections?”

Representatives of the firms didn’t respond to requests for comment. Although Jones Day has advised the Trump campaign and Republican National Committee this year, the firm noted in a press release that it’s representing the Republican Party of Pennsylvania in litigation challenging the election process in the state.

“Jones Day is not representing President Trump, his campaign or any affiliated party in any litigation alleging voter fraud,” the firm said. “Jones Day also is not representing any entity in any litigation challenging or contesting the results of the 2020 general election.”

Federal and state legal ethics rules require lawyers filing suits to generally cite some “reasonable” factual and legal basis to support the claims. It’s not until later in the legal process, when they have to turn over the evidence supporting their claims, that the rubber meets the road.

“I’m sure they know how to craft a valid complaint,” Jacobowitz said of the campaign lawyers. “But we don’t know what’s under the complaint.”

Jones Day represents Bloomberg Industry Group on some labor matters.

All Eyes on Keystone State

The Trump campaign has taken a special interest in Pennsylvania, a key battleground state whose 20 electoral votes were awarded to president-elect Joe Biden by the Associated Press and others—giving him more than 270 and the win.

One of the closest watched court battles features lawyers from Jones Day, among the 10 largest firms in the country, and Porter Wright, which is among the top 200 firms in the country as determined by gross revenues. The firms represent the Republican Party of Pennsylvania, which is asking the U.S. Supreme Court to ban the state from counting mail-in ballots that arrived up to three days after Election Day but were postmarked by Nov. 3.

Jones Day partner John Gore, a former Trump Justice Department official, is leading the litigation. He’s joined by Kathleen Gallagher, co-chair of Porter Wright’s election law practice.

Gore got into some hot water while at DOJ, where he was involved in the fight over adding a citizenship question to the 2020 census. He was subsequently accused in court of providing misleading statements about the origins of the question, which Trump later decided to scrap.

In another ongoing matter, the Trump campaign and RNC filed suit to prevent Pennsylvania from counting mail and absentee ballots for which missing voter identification information is not provided by Nov. 9. That suit is led by a Porter Wright team, including the firm’s other election practice co-chair, Ron Hicks, Jr.

Hicks focuses much of his practice on representing LGBTQ businesses, according to a bio on the firm’s website. He is also the lead in another federal lawsuit filed Monday.

That legal action, filed on behalf of the Trump campaign, argues that the state created an illegal “two-tiered” voting system that resulted in voters being held to different standards depending on how they chose to exercise their right to vote. The state’s 2.7 million mail-in voters didn’t have to take steps in-person voters did, the suit alleges, including signing voter registrations, and having those signatures checked against voter rolls.

The Biden campaign has rejected the premise of Trump’s election suits, arguing instead that all ballots should be counted. In reaction to an unfounded claim from Trump that Democrats were attempting to “steal” the election, Biden tweeted Nov. 5 that, “No one is going to take our democracy away from us. Not now, not ever. America has come too far, fought too many battles, and endured too much to let that happen.”

Jones Day has been identified with Trump since before he was sworn in as president. The new administration’s White House and Justice Department gained the services of several partners, including former White House counsel Don McGahn.

The firm has also already sent one of its own to aid the incoming Biden administration. Partner Shirlethia Franklin was announced Tuesday as part of the Biden transition team for the Justice Department.

Jones Day received a combined $2.9 million from the Trump reelection campaign and the RNC this year through Oct. 14, according to Federal Election Commission records. The two groups paid Porter Wright a combined $727,000 during the same period, FEC records show.

Lawyers don’t necessarily have to agree with their clients. But as the court battles continue, Jacobowitz and Peter Joy, a legal ethics professor at Washington University in St. Louis, said attorneys for the campaign will be forced to put their professional weight behind the allegations in the lawsuits.

“Whenever a lawyer files anything for the court, you are certifying under potential penalty that you have conducted sufficient investigation to believe that there is a reasonable legal and factual basis for what you are saying,” Joy said.

—With assistance from Chris Opfer.

(Updated to include additional information from Jones Day.)

To contact the reporter on this story: Sam Skolnik in Washington at sskolnik@bloomberglaw.com

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com; Rebekah Mintzer at rmintzer@bloomberglaw.com

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