“…in the context of bar grievances flying around against current Trump Administration lawyers, it’s important to be clear on what, exactly, Eastman is being disbarred for…Lawyers don’t get disciplined for merely “making efforts” to do things, or coming up with a “scheme” that is presented to clients. There has to be a violation in there somewhere of the applicable rules of professional conduct. Otherwise, Eastman may be onto something with his argument that discipline in his case could have a chilling effect on zealous advocacy. Relatedly, I get a bit impatient with the repeated suggestion that such-and-such lawyer should be disbarred for failing to promote the rule of law or doing things that harm democracy. Democracy and the rule of law are good things, but lawyers are not directly obligated to respect or promote them….

“California State Bar Counsel, in its Notice of Disciplinary Charges, alleged that Eastman “continued to work with Trump and others to promote the idea that the outcome of the election was in question and had been stolen from Trump as the result of fraud, disregard of state election law, and misconduct by election officials”…Eastman’s argument against discipline has consistently been that he was doing nothing more than providing legal advice to his client. Maybe it was bold, but that’s okay. After all, aren’t lawyers supposed to be zealous advocates? To that, Eastman added the First Amendment right to freedom of speech and to petition the government for redress of grievances. And, perhaps surprisingly, the First Amendment protects the right to tell lies [Note: the professor is referring to SCOTUS striking down the “Stolen Valor Act” in U.S. v Alvarez] 

“There is no discernable constitutional value in a lie about an easily verifiable factual statement, like “I won the Congressional Medal of Honor.” How in the world does that contribute to the search for truth, or democratic self-government, or resisting official power, or any other serious constitutional value? Okay, you may say, but lies by lawyers are different. Lawyers have a distinctive constitutional role in upholding the rule of law. They are also traditionally recognized as “officers of the court,” with duties of candor to tribunals. Perjury is a crime, and perjury is one of those historical exceptions to First Amendment protection, but in addition to that, lawyers are subject to their state’s version of Model Rule 3.3(a), which prohibits making a false statement of law or fact to a tribunal, and Model Rule 4.1(a), which prohibits making a false statement of material fact or law to anyone. Is that exactly what Eastman did when he pushed the Big Lie about the 2020 presidential election being stolen? Maybe a blowhard political commentator or YouTube personality could say those things, but lawyers’ speech is regulated, and there are serious consequences for lawyers who make false statements of fact (“there was fraud in the election”) or law (“the Vice President has the authority to refuse to certify state electors”)…The Court is very committed to the view that, outside a small number of narrowly circumscribed, historically recognized categories, speech is speech and fully protected by the First Amendment…. The Court’s speech-is-speech position means, potentially, that speech that violates the rules of professional conduct is subject to the same robust First Amendment protection as Alvarez’s claim to have been awarded the Medal of Honor…

“…I think we’re in a period of significant uncertainty regarding the intersection of rules of professional conduct and the First Amendment as applied to advocacy in the area of hotly contested social and political issues. The endlessly repeated claim from both sides about “weaponization” lends more support to an approach that simply withdraws the possibility of professional discipline from the field altogether.”

 

I respect Brad, though I object to his repeated assertion in the essay that the claim the 2020 election was rigged is a “Big Lie.” His broader argument, however, that the bar associations disbarring Trump lawyers for their claims about the election constitutes a partisan double standard as well as a First Amendment breach is spot on and well-supported.

The whole essay is here, and you can subscribe to Prof Wendel’s substack free of charge. I recommend it.