From The “Bias Makes You Stupid” Files! Ethics Dunce: Legal Ethicist Steven Gillers

A depressing theme throughout the Trump years has been the corruption of various professions as members once justifiably regarded as trustworthy abandoned their ethical obligations to become “resistance” allies. The professions thus tainted include judges, scientists, doctors and health professionals, lawyers, psychiatrists, historians, teachers and professors, university administrators, and of course the worst offenders, politicians and journalists. Maybe I’ve missed a few. One more profession that has to be included on the list, I’m ashamed to say, is legal ethicists.

In a post in 2017, I discussed the disgraceful filing of a frivolous and politically motivated bar complaint against then-Trump aide Kellyanne Conway by a group of law professors, some of whom are ethics specialists, and a few of whom I knew and respected. I wrote in part,

I wouldn’t file an ethics complaint against these 15 unethical professors, though their conduct while not engaging in the practice of law is far worse than what they allege of Conway. I don’t believe it calls into question their fitness to practice law. It calls into question their fairness, judgement, and willingness to abuse their positions, however. Their basis for the complaint is minimal. Their arguments are inflated and disingenuous. Their motives are unprofessional, and obvious… I will be stunned if [the D.C. Bar’s] reaction to this disgraceful abuse of the Bar’s function, the disciplinary process and the Rules themselves differs from mine in any way.

The rest of the story: It didn’t.

Now a sequel of sorts is underway that like most sequels, is worse than its predecessor. One of Donald Trump’s lawyers, Joe diGenova said in an interview on Newsmax’s “The Howie Carr Show” that fired Cybersecurity and Infrastructure Security Agency head Chris Krebs should be “drawn and quartered” and then “taken out and shot” for his failure to protect this election. You know, this:

DiGenova, a former United States Attorney for the District of Columbia (Full disclosure: I have met Joe, who was a distinguished community theater performer–he sings!—with an Arlington Virginia group I was also once active with) was criticized for his intemperate language, but Democratic Reps. Kathleen Rice (D-N.Y.) and Ted Lieu (D-Calif.)  filed a disciplinary complaint alleging serious violations of the D.C. Rules of Professional Conduct, because, they risibly asserted, it was clear that diGenova was really threatening Krebs with disemboweling, setting his entrails on fire, and while they burned, having four horses pull him to pieces. Boy, I hate it when that happens! Shooting anyone after this seems both pointless and ineffective, wouldn’t you say?

In a later interview with the Washington Examiner, diGenova stated the obvious, that his comment was not intended as a threat. He stated “For anyone listening to the Howie Carr Show, it was obvious that my remarks were sarcastic and made in jest. I, of course, wish Mr. Krebs no harm. This was hyperbole during political discourse.” How could what he said be regarded as a threat when 1) diGenova has no power to inflict such torture, 2) what Krebs did, however negligent, was no crime, as the former prosecutor obviously knows, 3) if it were a crime, it would obviously not be a capital offense, 4) such treatment is unconstitutional under the 8th Amendment and 5) nobody has been drawn and quartered in over 700 years? Yet some legal ethics experts actually declared the complaint as valid and persuasive. They really did. Really. No, seriously…I wouldn’t lie to you.

For example, D.C. attorney Mark Zaid, who, like me, gives ethics seminars for the D.C. Bar, declared that “no rational person” who heard diGenova calling for a person to be drawn and quartered and then shot “would have taken it as ‘jest.’” Zaid’s ethics alarms are sufficiently assessed on the basis of this episode. Professor Steve Vladeck said “Lawyers who make these kinds of threats should be disbarred. Full stop.” Wow. No lawyer in the history of the profession has been disbarred on the basis of a constitutionally protected statement of opinion while not practicing law, and no lawyer ever will because…

…it’s stupid, and obviously stupid.

Yet incredibly, Prof. Stephen Gillers, probably the best known legal ethicist in the nation (which is, admittedly, like being the most famous professional croquet player, but still..) actually endorsed Lieu’s and Rice’s complaint! For me as a legal ethicist, this is the approximate equivalent of a trusted role model declaring that he is the reincarnation of Fanny Brice and joining the Ku Klux Klan

Gillers argues that the D.C. “Misconduct” rules 8.4(b) and 8.4(d) to apply to lawyers who “(b) Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects” or “(d) Engage in conduct that seriously interferes with the administration of justice.” So what? What diGenova said isn’t a crime, and has no impact on the administration of justice at all. Krebs is not a party to any litigation and won’t even be a witness in the various election challenges, yet Gillers says that “a disciplinary body could find that diGenova’s threats against Krebs for saying the election was fair seriously interferes with the work of the courts in addressing the campaign’s claim that the election was unfair.”

Right, Stephen. And I could flap my arms really hard and fly to Mongolia.

The amazing thing is that their Trump Derangement has not only reduced these once respectable professionals’ IQs to the level of mouth-foaming hacks, they are not even aware of how foolish they appear.

_______________________

Pointer: Res Ipsa Loquitur

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