Yes, I am running out of puns, and this is information isn’t breaking news anymore, but 110-page opinions have bad habits of dropping while I’m on vacation.
Anyway, while I was gone, Hon. Linda Parker of the Eastern District of Michigan sanctioned several attorneys, including Sidney Powell and Lin Wood and a few less famous, but all associated with the post-election “Kraken” litigation. My nerd friend Don Campbell did his best with exceedingly bad facts, but.
This is a remarkable opinion. It is also 110 pages, so it’s not a beach read (well, maybe it is, I won’t judge), but if this interests you at all you should read it.
But the takeaway here is that most of the lawyers who participated in what Judge Parker described as “a historic and profound abuse of the judicial process” will have to pay the attorney fees of the defendants and will be referred to their relevant disciplinary authorities. In addition, they will need to take 12 hours of continuing legal education courses, six of which must be focused on “pleading standards” and six on election law (offered by a nonpartisan organization).
As an aside, CLE as part of a sanctions or disciplinary order is not unusual, but I don’t know, generally, whether the judges, referees, and others imposing the order check on availability of the CLE before ordering it. There are some on-demand elections CLEs offered by state bar associations that should fulfill the requirements, but I am not sure what “pleading standards” means in this context. I’m sure some enterprising soul could put something together.
So, lessons here? In addition to, well, don’t file frivolous nonsense seeking to undermine the republic (which I hope nobody voluntarily reading an ethics snark blog that as far as I know is not assigned reading anywhere is doing), there are practical takeaways for lawyers generally who have difficult clients who want them to do things they’re not supposed to do.
It is important to remember: you’re the lawyer. It doesn’t matter what your client wants you to do, how much they pay you, or how famous it might make you—if it’s objectively frivolous, you can’t do it..
Keep channels of communication open with your clients, and explain (in terms they can understand) what you are doing, why you are doing it, and if you’re not doing what they want or expect, why you can’t.
Don’t be afraid to say no, up to and including firing an existing client. This is much easier said than done, if the client is in a position of power, or you do not feel you are in a position to turn down work. If you are an associate and your client wants you to do something you do not feel you can ethically do, talk to your supervisor. You may have a billable quota but as supervisors, they can be responsible for your actions right along with you, if they know about the conduct and order you to do it, ratify your conduct, or fail to intervene when consequences can be avoided or mitigated.
See also my nerd friend Brian Faughnan’s excellent, and more timely but still punny take on this. He’s got a great primer on what not to do if you don’t want to get sanctioned when filing a lawsuit. Because you don’t.