A legal group has filed a formal ethics complaint at Trump lawyer John Eastman, author of the infamous “coup memo” outlining legal strategies to overturn the 2020 election (details here).
Eastman was fired from his law teaching position, but still has a sinecure at the Claremont Institute, a fascist think tank, that doesn’t depend on him remaining licensed to practice law.
The complaint doesn’t ask the California Bar Association to disbar Eastman, only to investigate his conduct in relation to the advice he offered Trump and others concerning the election. Their letter contends “Eastman was not working in his capacity [as a lawyer] to provide independent legal advice to the former president, but rather, that he ‘was participating … in a carefully orchestrated collective plan to overturn the results of the 2020 Presidential election.’”
Eastman and his counsel probably will argue that aggressive lawyering, per se, isn’t grounds for professional discipline. The real question is whether it crossed a line. The complainants will have to show his advice overstepped ethical boundaries by violating specific professional rules of conduct.
This is somewhat different from the ethics cases against Rudy Giuliani, Sidney Powell, and other Trump campaign lawyers who’ve been sanctioned by courts, because they filed lawsuits to overturn the election that judges determined to be frivolous. That not only puts them under court rules that can require them to pay their opponents’ defense costs, but violates professional conduct rules and subjects them to discipline.
By comparison, Eastman only concocted a highly creative (not to mention dubious) legal theory to justify pressuring Pence to reject electoral votes in favor of Biden. For his critics, that’s enough; they can argue any lawsuit based on that would be frivolous and sanctionable. The question is whether a lawyer can be sanctioned for offering frivolous advice to a client. That probably would be argued under rules requiring a lawyer to provide competent representation, but that’s a squishy area of ethics law. (Note, the “coup memo” being public, there’s probably no attorney-client privilege.)
Eastman himself seems to recognize there might be a problem with his “advice.” He has resisted testifying before the House committee investigating the insurrection and sued to block them from accessing his phone records.
Regardless of what happens, it’s good that he’s being made to answer for his disgraceful conduct. He deserves to be raked over the coals for plotting the overthrow of our democracy. He’s a despicable excuse of a lawyer. If I had to represent him, I’d probably advise him to claim he wasn’t acting in his capacity as a lawyer at all, but merely exercising his God-given freedom as an ordinary American citizen to be a jerk, which isn’t against the law.
That’s the best defense of his conduct I can think of.
The complainants will not have to show anything. Which is probably why they have not asked for disbarment because they know it will not fly.
California’s State Bar determines if there is merit and then opens an investigation. The Bar can then give the attorney a warning or a ALD neither of which is lawyer discipline. The bar can do nothing or file charges. The State Bar Court will the case and there is a process that ends at the California Supreme Court. We will know if this is serious for Eastman if a case is filed as that is public, and we will know the outcome.
I suspect no case will develop or if one does Eastman will prevail either with the Court Bar or the Supreme court level. Meanwhile his attorney will tell him to keep his head down and mouth shut, and let this nonsense wash down his back like a duck.
Eastman doesn’t strike me as someone who can keep his mouth shut.