The 65 Project on Thursday urged strengthening the rules of professional conduct for attorneys to deter future abuses of the legal system to subvert democracy and ensure that public officials are also now clearly bound by the rules of professional conduct and cannot use their office to undermine free and fair elections.
“The 65 Project launched in March 2022 to deter future abuse of the legal system to overturn our nation’s fair and legitimate elections and started by filing bar complaints against Big Lie Lawyers. But just as Trump and his allies sought to exploit vagueness in the Electoral Count Act, some lawyers evaded accountability because of gaps in the legal profession’s ethical rules,” said Michael Teter, managing director of The 65 Project. “We have worked closely with law professors and professional responsibility practitioners to develop our proposals, including their application to public officials.”
“Lawyers purport to be self-regulatory and special in the construct of American democracy. They do so because they are stewards of the rule of law and so they are responsible both for implementing it and upholding it and also for self-policing to make sure they are legitimate stewards. When the question is ‘who will guard the guardians,’ their answer has been ‘we will guard ourselves.’ It seems clear that in the 2020 election The bar, as a general rule, failed in that responsibility,” said Paul Rosenzweig, advisory board member, The 65 Project and eminent Republican attorney. “It is extremely useful to begin the corrective process of clarifying any ambiguities and making it painfully clear that the province of the law is law and the province of the courts is fact, not the fiction that seems to have pervaded our political discourse in the last few years.”
“Many of the lawyers making false election claims are elected officials but unless they are representing a party in one of the lawsuits themselves they are not currently bound by their ethical obligations in the same way.” said Renee Knake Jefferson, advisory board member, The 65 Project and prominent legal ethics expert. “This is a topic I first addressed in the Yale Law Journal where I laid out that lawyer lies designed to sabotage valid election results should not be considered protected political speech. Our proposal incorporates that thinking to ensure that public officials who are lawyers are also now clearly bound by the rules.”
Proposed language of rules that will close gaps that allow office-holding lawyers to violate attorney standards simply by amplifying knowingly false statements about elections; will provide election officials and administrators with the same protections against harassment and misinformation as the rules provide judges; will impose a duty on lawyers advising public officials about governmental action to represent the interests of the office, not the individual; will limit the ability of lawyers in election-related matters from lying to the public; and will allow lawyers to disregard concerns regarding confidentiality when a client is seeking to violate the law to subvert democracy.
• A lawyer serving as a public official shall not knowingly make a false statement of material fact about the outcome of a federal or state election, even when the lawyer is acting outside of the representation of a client.
• A lawyer serving as a public official who participates as a party, amicus, or witness in any matter before a tribunal is bound by the obligations under the Rules as imposed on a lawyer who is representing a client.
• A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a public official or employee charged with administering elections or concerning the conduct of that public official or employee with respect to administering elections.
• A lawyer who advises, assists, or serves as a government official has a duty to the integrity of the constitutional system of the United States government and to the governmental office being advised, assisted, or assumed.
• A lawyer shall not advise or assist a government official or entity to engage in conduct that (1) is criminal or fraudulent; (2) is clearly prohibited by applicable law relating to that government office or entity; (3) constitutes a gross usurpation of government power; or (4) undermines the legitimate outcome of an election. This provision does not prohibit non-frivolous, legitimate, or routine court and administrative challenges to an election, including seeking a recount through appropriate processes.
• A lawyer who is representing a government official or entity and who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement regarding that matter that (1) is knowingly false or (2) that lacks a reasonable basis in law or fact and could not be presented to a court in compliance with Model Rule of Professional Conduct 3.1 or Federal Rule of Civil Procedure 11.
• A lawyer engaged in a representative capacity of a government official or entity shall not make a false statement of material fact or law relevant to the representation to a third party, including to the public.
• A lawyer who represents, advises, or assists a government official or entity may disclose information despite Rule 1.6 and the duty of confidentiality regarding the conduct of government officials that is criminal or fraudulent; (2) is clearly prohibited by applicable law relating to that government office or entity; (3) constitutes a gross usurpation of government power; or (4) undermines the legitimate outcome of an election. If disclosure would require divulging classified information, the lawyer shall proceed in compliance with applicable law for securing the information’s secrecy in making any such disclosure.
