Should Trump’s lawyers be punished for advocating their client’s position?

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.”

7 thoughts on “Should Trump’s lawyers be punished for advocating their client’s position?

  1. Aye.

    If this is to be the standard as handed down by the Colorado State Bar, then when will the armies of ACLU and other hug-a-thug lawyers get disciplined for their extreme advocacy for psychopathic murderers on death row?!?

    Nowadays … with DNA testing, other forensics, and even electronic and digital evidence, most convicted killers are proven to be guilty with levels of certainty that go beyond any reasonable doubt. With these extraordinarily high levels of evidentiary guilt, anyone of us would have a better chance of winning a $100 million lottery than one of these killers actually being innocent.

    Yet these criminal defense/death penalty lawyers will throw out any made up excuse in attempts to get their clients out of the execution chamber.

    The abundance of false narratives regularly used by these death penalty appellate lawyers should subject them to some form of sanction, right?!?

    After all, sauce for the goose is sauce for the gander.

    Of course … the liberal fascists infesting so many of our institutions, including our courts and bar associations, will have none of this. Their “truth” is whatever the current zeitgeist happens to be, and truth and facts are as malleable as a handful of PlayDoh.

    So … in that spirit, Trump’s legal advocates must be left alone.

  2. Seems the lefties are trying to make advocacy for a client yet another political crime.. They should remember that what goes around comes around.

  3. I assume you’re speaking of Jenna Ellis, who was declared to have “undermined the American public’s confidence in the presidential election, violating her duty of candor to the public.”

    What confidence? I don’t have any, despite liberal media’s constant drumbeat about claims of election fraud being false, baseless, whackadoodle conspiracy stuff. They say correspondingly prejudicial things about the “reality” and horror of the January 6th “insurrection,” with its “Q-anon shaman.” Where is THEIR “duty of candor”?

    As for your not intending to “relitigate” the 2020 election, I don’t see that it was ever properly litigated in the first place. If it were, perhaps the January 6th event would not have occurred.

  4. Well welcome to the party, they’ve been going after John Eastman like sharks on a minnow, excellent metaphor, since the 6th. It’s a travesty of what the Left has done to our system and the Right has allowed. We’re inna horrible position now with so many political prosecutions. We’re not America anymore We’re in transition to something else but definitely NOT a Republic.

  5. the left – and the right – are not monolithic. It was entertaining to watch Matt Taibbi – a dyed in wool lefty – scoffing at the Dem congress-pinheads while they grilled him for doing his job as a journalist. The crazier the extreme elements of the left become, the more they drive the sane ones to the right

  6. Pingback: Links and Comments | Rockport Conservatives

  7. Nothing says clean government like outlawing audits. Colorado Secretary of State – Jena Griswold unilaterally banned election audits..

    Not only was the election stolen / rigged but so is everything post- election. It is simple psychology. Just look at the absurd over reaction by Democrats and their pals – corporate media and ..

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s