We find ourselves in a precarious moment in our democracy.
The 2020 elections highlighted how vulnerable our nation’s election officials and workers are to harassment and abuse. These threats were spawned by baseless conspiracy theories and came not only from political operatives, but also from lawyers with a duty to abide by strict ethics standards.
The dangers to our democratic institutions continue to unfold. The congressional investigation into the Jan. 6 attack on the US Capitol played videotape at a June 21 hearing showing that one of former President Donald Trump’s personal lawyers, Rudy Giuliani, made baseless accusations of fraud against two Georgia election workers during the 2020 election.
Some may view Giuliani’s professional misconduct as an aberration. Others might conclude that a New York appellate court issuing him an interim suspension for making numerous untrue statements shows there’s no need to change the rules because they already sufficiently address these situations. They’d say Giuliani’s punishment is proof the system is working.
These arguments are all unpersuasive. The next national election is imminent and whether future disciplinary authorities and courts will interpret the broadly written current rules as the New York court did is highly uncertain.
The legal profession must respond by updating its ethics rules to clearly affirm that a lawyer may not knowingly or recklessly make false statements about election officials and election workers.
The American Bar Association’s Model Rules of Professional Conduct, which has been adopted in some form by every state, already includes several general provisions about false statements made by lawyers. They prohibit a lawyer from engaging in “conduct involving dishonesty, fraud, deceit or misrepresentation” or, in the course of representing a client knowingly making a “false statement of material fact or law to a third person.”
The rules also target more specific situations, including who the lies are about and to whom the lies are told. One of these rules states that a lawyer “shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election for appointment to judicial or legal office.”
A comment accompanying this rule states that the public relies on a lawyer’s assessments of public officers and that “false statements by a lawyer can unfairly undermine public confidence in the administration of justice.”
Although disciplinary authorities could interpret “public legal officer” broadly, the comment suggests the term is limited to those who appear in court, such as attorneys general, prosecutors, and public defenders. The rule seeks to maintain the integrity of our court system, not our election system.
However, the aftermath of the 2020 election continues to show us that our elections are as much a bulwark of our democracy as the judicial system.
Knowingly, Recklessly Making False Accusations
Like judges, election officials and workers are expected to perform their work free of bias and political influence. Like judges, election officials and workers are vulnerable to public and professional attacks that can undermine the public’s confidence in our democratic system. Lawyers should not facilitate or exploit these vulnerabilities by making knowingly or recklessly false accusations against election officials and workers any more than they should undermine the courts by making unfounded accusations against judges.
I have no doubt the drafters of the current ethics guidelines did not think to specifically cover election officials and workers. They wouldn’t have seen a need to do so. Until the 2020 election, there was little history of lawyers making knowingly or recklessly false accusations against this type of public servant.
The world, however, has changed. Some lawyers who continue to back Trump’s “Big Lie” have not only failed to recant their positions, but doubled down on them and are now running or supporting like-minded candidates to fill the positions overseeing our elections and upon which our democracy depends.
These new circumstances compel the legal community to affirm its core principles and apply the protections it wisely offers to judicial colleagues to those conducting our nation’s elections. The ABA and states should revise their rules to say that unequivocally.
Lies about election officials and workers are not just any lies.
The rules of professional conduct are the public statement of the values for which lawyers stand. Its preamble states that lawyers “play a vital role in the preservation of society.” That responsibility entails supporting fair and impartial elections, including supporting the public servants who make such elections possible. We can do this by expressing the legal profession’s commitment to protecting these public servants against unfounded allegations strongly and clearly in our ethics rules.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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George M. Cohen is the Brokaw Professor of Corporate Law at the University of Virginia School of Law, where he teaches professional responsibility, contracts, and agency and partnership. He’s also co-author of “The Law and Ethics of Lawyering,” and has served as an expert in legal ethics matters.