It's been more than a week since virtually every major news outlet called the 2020 presidential election for Joe Biden. Meanwhile, President Donald Trump's legal team continues to litigate baseless claims about voter fraud, which has raised a number of ethical concerns within the legal community. GBH Morning Edition host Joe Mathieu spoke with Northeastern University law professor and GBH News legal analyst Daniel Medwed about some of the ethical challenges lawyers filing the suits may face. The transcript below has been edited for clarity.
Joe Mathieu: Before we get to the ethics here, talk to us about the latest on the legal front. I was just mentioning Pennsylvania in that newscast. Are any of President Trump's allegations actually gaining traction?
Daniel Medwed: It doesn't look like it. He's filed more than 30 lawsuits in six different states and he's already piled up about 20 losses, not to mention losing three lawyers who dropped out of that Pennsylvania case you mentioned just late last night. There's really no coherent strategy here — we've talked about this over the course of the past couple of weeks — and the gap right now, the voting differential, is just so wide and the number of states in play so diffuse, I don't see any realistic chance of overturning that result, at least through legal means.
Mathieu: So the president has hired some top tier law firms here, and those firms are getting a lot of criticism from within legal circles and, of course, beyond. But what's the argument here when it comes to legitimacy of handling these cases? Is there no ethical problem here?
Medwed: Well, that argument basically has two components to it. First, there's what I'd call the autonomy argument, that lawyers should have the discretion to pick and choose the clients they want to represent without succumbing to public pressure, and that instead their conscience and business model should guide that decision. The second argument is more structural, that it's really important to represent or vindicate the interests of unpopular clients. That's a way of protecting minority interests from the whims of the majority. It's sometimes articulated as that the hallmark of a civilized society is the extent to which we zealously defend the interests of our most reviled members. John Adams famously trotted out this argument to justify defending a red coat during revolutionary times. And in this context, I think it's at least superficially compelling, this idea that the public shouldn't dictate who lawyers represent, that that's a slippery slope that will get us to a place we don't want to be.
Mathieu: You said superficial, Daniel. What's the counterargument that maybe these lawyers have crossed a line?
Medwed: The counter argument looks like this, and I think it might carry the day. It's one thing to represent an unpopular client. That's fine. It's something else to file baseless, groundless claims on behalf of the most powerful figure in the world, the President of the United States. Each state basically has the authority and the capacity to regulate lawyer behavior, and to do that, they've passed a number of ethics rules that basically modulate how lawyers conduct themselves. Every state has some version of a rule known as the rule of candor. It requires that lawyers shall not knowingly file false statements of fact or law to a judicial tribunal, nor should they knowingly present false evidence to a court. So the argument against these lawyers looks a little bit like this: that by making allegations of voting improprieties without data to substantiate those claims, these lawyers might be violating the rule of candor, depending on how it's defined and interpreted in the jurisdiction where they practice.
Mathieu: So let's say that a lawyer crosses the line here and maybe there is some retribution after. I don't know if we're going to go into counter lawsuits here. Would someone have to file a misconduct claim against the lawyer or against their firm?
Medwed: Yes. So allegations of misconduct or malpractise are usually filed with the State Bar by an aggrieved client, a client who says that her attorney didn't represent her properly. In this instance, I don't see President Trump necessarily filing an ethics grievance against his lawyers, at least at this stage. He does have a tendency when things go south to turn on the people who have helped him, so that's something we could be talking about down the road. But more notably, in many states, third parties — people who are not connected to a particular case [and] who aren't represented by that lawyer — have the ability to file grievances. So, in fact, I've done this in California. A couple prosecutors in California, in my view, overstepped the rules of ethics and harmed criminal defendants, so I've submitted some pending Bar complaints against them. In terms of the result, if the State Bar determines that a grievance is credible, then the punishment really runs the gamut. So at the mild end, the lawyer could get maybe a letter of censure or a reprimand, but at the severe end, they're facing a suspension of their license to practice law or even potentially disbarment.