Here’s another lawyer joke:

A mathematician, an engineer, and a lawyer were each asked the question, “What is two plus two?”

The mathematician answered, “It’s four. It’s exactly four.”

The engineer answered, “It’s four, give or take a little. It depends on the precision of the numbers.”

The lawyer answered, “What do you want it to be?”

Lawyers are supposed to be zealous advocates for their clients. That’s not just customary; it’s a formal provision in the American Bar Association Rules of Professional Conduct – the ABA ethics rules.

This practical custom and ethical duty result in lawyers having a certain dexterity with facts. Lawyers spin the truth.  

That’s intentional in the American legal system. The theory is that for every zealous truth-spinning lawyer there is an equally zealous truth-spinning lawyer on the other side. In the hot cauldron of a courtroom, the battle between these opposing zealots – each challenging the other’s version of the facts – will out the truth for the jury to see.

In my experience in court, this theory worked surprisingly well. Juries usually got the verdict right.

I’m therefore troubled to see that a lawyer was professionally disciplined for her advocacy of Donald Trump’s position in contesting the 2020 election. Recall that Trump claimed the election was stolen from him by massive voter fraud.

Trump’s lawyers supported their client’s position, as lawyers are supposed to. One in particular, who happens to be a member of the bar here in Colorado, stated to the media that “the election was stolen and Trump won by a landslide,” that “we have over 500,000 votes [in Arizona] that were cast illegally,” and that “Hillary Clinton still has not conceded the 2016 election.”

The local barristers of the bar in Colorado – the legal establishment which is overwhelmingly liberal and anti-Trump – brought a formal disciplinary proceeding against this lawyer for making those statements. A Justice of the Colorado Supreme Court presiding over the matter publicly censured her.

As a preliminary matter, it should be noted that lawyers normally have a First Amendment right to express their political and legal opinions in the public square, just as everyone else does, even if they are incorrect and even if – especially if – the gatekeepers to their profession don’t like it.

But this lawyer was speaking in her capacity as a lawyer representing a client, so let’s go on to the ethics issue.

There was certainly some fraud in the 2020 election. There always is and in 2020 there might have been more than usual. But after two years of digging there’s little hard evidence of enough fraud to have changed the election outcome.

That should be the end of the matter, except perhaps for historians. Sometimes lawyers lose a case. In fact, on average they lose half their cases. The aforementioned mathematician would tell you that, overall, for every win there’s a corresponding loss on the other side.

That means that half the time lawyers are advocating positions that are found to be false by a judge or jury. Such advocacy is not a crime and is not unethical. To the contrary, it’s obligatory under the ethics rules.

At least it used to be.

Whether Trump’s position that the election was stolen is correct or incorrect is not the issue here. I’m not here to relitigate that. The issue here is that a lawyer representing Trump had an ethical and professional right – nay, duty – to advocate that position.

Undermining that right and duty produces two bad outcomes. One is that lawyers risk losing their reputation and even livelihood by representing clients who are unpopular with the establishment.

The other bad outcome is the product of the first one: Those unpopular clients – the kind of clients who often need lawyers most – will be denied them.

But this was not an ordinary case, you might say. Indeed, it was not. It was a political case. In a political case, however, a lawyer’s duty to be a zealous advocate should not be diminished, but rather heightened.

Justice should not wave in political winds. In America, election losers don’t get disappeared – and neither should their lawyers.

Glenn Beaton practiced law in the federal courts, including the Supreme Court, and thinks two plus two is pretty close to four. Watch for his book set for publication on April 18 titled “High Attitude – How Woke Liberals Ruined Aspen.”