Untangling the legal ethics of lawyers and the Jan. 6 insurrection

With court revelations emerging in recent weeks, the investigation into the Jan. 6 insurrection is heating up. Just a few days ago, a Massachusetts pizza delivery driver was sentenced by a federal court to prison time and parole for participating in the riot. One issue that emerged amid the legal fallout is concern over the extent to which lawyers played a role in the insurrection. Daniel Medwed, GBH News legal analyst and Northeastern University law professor, joined GBH’s Morning Edition hosts Paris Alston and Jeremy Siegel to talk about legal ethics and the investigation. This transcript has been edited for clarity and length.

Paris Alston: So Daniel, let's begin with the big picture here. Everything about this insurrection has been unprecedented, right? So, when it comes to something like this, what rules, if any, govern what lawyers do, particularly if their clients may have been involved?

Daniel Medwed: "Unprecedented" is the perfect term, Paris. It's one we've used quite a bit over the last couple of years. In a sense, we could consider what happened on January 6 as an effort to overthrow the government, not through a military means on the battlefield, but through legal machinations in a courtroom where President Trump enlisted a series of lawyers, including John Eastman, Rudy Giuliani and Sidney Powell, to raise baseless claims of voter fraud in an effort to essentially overturn the election.

So lawyers, by virtue of their license to practice law, are subject to certain rules of professional conduct in their jurisdictions. You have to be a zealous advocate. You have to fight for your client. You owe your client a duty of loyalty and a duty of confidentiality, which includes an obligation to disclose any conflicts of interest. You have to have a baseline level of competence in your legal skill, and you owe the courts, judges what's called a duty of candor. You have to be honest.

Now, if your client or really anyone else for that matter thinks that you violated one of these rules of professional conduct, they can file a grievance with a state ethics board, which is essentially a group of lawyers overseeing other lawyers. And if the board is so inclined, they can issue some discipline. They can issue you a reprimand, suspend your license or, in rare cases, disbar you. In addition, there are a host of other rules, legal and evidentiary rules, that could govern this behavior. You might be subject to a legal malpractice lawsuit in civil court, or you could be forced under the rules of evidence to disclose information to a judge. So lawyers are beholden to a whole range of different obligations.

Jeremy Siegel: So let's talk about one specific lawyer. You mentioned his name earlier in connection to former President Trump. His name is John Eastman. He's kind of been at the center of this question of law, lawyers and the insurrection. Who exactly is he and what was his role in the insurrection?

Medwed: John Eastman is a well-known conservative lawyer from Southern California. He's a former law professor at Chapman University in Orange County, as well as a former law clerk to Justice Clarence Thomas on the Supreme Court. He became a pivotal legal adviser to former President Trump in the run-up to the 2020 election and in its aftermath. For those reasons, there is a belief that he has a treasure trove of information about what Donald Trump was doing during that period and what he might have been thinking.

Alston: So last week, Daniel, a federal judge ruled that Eastman had to turn over confidential documents related to those communications with President Trump. What was the basis for that ruling and how does it mesh with the lawyer's duty to preserve confidentiality that you mentioned earlier?

Medwed: So here's how it works: On the one hand, that duty to for confidentiality, the policy behind it is that we want to encourage a full and frank line of communication between a client and her lawyer to make sure that the representation can be effective. And if a client doesn't disclose sensitive information to a lawyer, the lawyer might not necessarily be able to do a good job. That's the theory, and that there would be a chilling effect on those communications without a duty of confidentiality because the client would be fearful that the sensitive information would be disclosed. On the other hand, the policy behind the duty of confidentiality is not boundless. We don't want to protect all communications.

So there's something known as the crime fraud exception. If a client is consulting a lawyer for purposes of perpetuating an ongoing crime or fraud, then it's not subject to confidentiality. We don't want to protect, as a society, those types of communications. And that was the basis for this ruling that you mentioned Paris last week, where a federal judge in California, Judge Carter, ruled that Eastman and Trump were essentially conspiring, that there was an element of a crime or fraud here, and therefore that their communications should not benefit from the privilege of confidentiality. And the judge ordered disclosure of a large amount of documents.

Siegel: Daniel, earlier you mentioned sort of two different types of rules that govern the way lawyers can behave here: evidence rules and professional conduct rules. That court decision that you were just talking about against Eastman, that was based on the evidence rules you talked about, right?

Medwed: That's right. Exactly.

Siegel: So what about rules of professional conduct in that situation? Will Eastman face disciplinary action from lawyers in California, from the California bar?

Medwed: That remains to be seen. So in the aftermath of the insurrection attempt, he did resign from his tenured position at Chapman. And apparently, there's an ongoing investigation by the California State Bar. There have been ethics grievances filed against him. Now, as with all self-regulating industries, it's a very opaque process. We don't really know what's going on. And statistically, it's unlikely that lawyers get severe discipline as a result of these investigations.

That said, this is a very high-profile case and it is a very egregious allegation, presumably, the idea of fomenting the overthrow of the government through legal means, could possibly result in severe sanctions. And if he is disciplined, it could have a major effect on his life because apparently his goal now is to continue to litigate conservative causes through his affiliation with a right-wing think tank called the Claremont Institute in Southern California. So I think we'll have to wait and see whether he does face the disciplinary music out there.

Alston: So since we're talking about ethics, Daniel, let's real quick talk about this puzzle between Trump's chief of staff, Mark Meadows, Ginni Thomas, a conservative activist and spouse of Justice Clarence Thomas. Because, some people are calling for disciplinary action against Justice Thomas based on his wife's behavior in which she texted Chief of Staff Mark Meadows related to the Jan. 6 insurrection. And people are calling on disciplinary action, for Thomas to recuse himself. So is there any basis for those demands?

Medwed: Well, that's a fascinating question, Paris. And sort of here's how it works. Most state and federal judges are subject to judicial ethical rules. But Supreme Court justices are not because Congress is really concerned about separation of powers concerns. So I don't think he'll necessarily face any disciplinary action.