In the aftermath of the November 2020 election and the Jan. 6 insurrection, attention is increasingly being paid to the role lawyers played in the run-up to and aftermath of those events. Rudy Giuliani’s law license has been suspended. Sidney Powell has been referred by a federal court for possible discipline. And complaints have been filed against Jeffrey Clark and John Eastman, alleging violations of lawyers’ Rules of Professional Conduct.
I’ve been a participant in the legal ethics and discipline process for more than 20 years. In this post, I use that experience to explore the role of legal ethics and bar discipline as they apply to the Trump insurrection, using the complaint against Eastman as a prism to explore the broader issues. I chose Eastman because, though I’ve met him a couple of times, I do not know him and because I have no connection at all to the California bar’s disciplinary process and, therefore, can review the matter with some dispassionate neutrality.
I note at the outset that, of course, each complaint of misconduct against an attorney stands or falls on the facts of each case. Thus, while the contours outlined below are of general applicability, it should go without saying that particular conclusions about one individual are not readily generalizable to others.
This post proceeds in two parts: First, for those unfamiliar with the bar discipline process, it provides some context for the proceedings; and second, it assesses the specifics of the complaint against Eastman.
Here’s my bottom line: Bar discipline is an instrument ill suited to the resolution of complaints of the sort being raised about Eastman’s conduct. While it is quite possible that he may face discipline, it is equally likely that his conduct will be deemed within the bounds of accepted legal ethics requirements.
The exercise of considering the Eastman case through the lens of the disciplinary process demonstrates that the threats to American democracy posed by Trumpist election denialism cannot be addressed adequately by bar discipline. At best, it is an ancillary remedy, and at worst it is a distraction from the far more urgent and efficacious remedies of criminal prosecution, congressional investigation and legislative correction. While the integrity of the legal profession is certainly a high-value principle, it’s important to consider prioritizing other more urgent problems, like the threat to elections themselves, for mitigation.
Bar Discipline—A Primer
Each of the 50 states plus the District of Columbia runs an independent law licensing process. Typically, the state delegates the authority to regulate the admission of attorneys to practice in that state to a bar organization or other state-based institution. The authority to regulate admission and thus to grant licenses to practice law is created either by state statute or (less frequently) by rule of the highest state court. Simply by way of example, here is the Washington, D.C., rule. State bars typically regulate admission to practice by administering an exam testing legal knowledge.
Along with the authority to manage and regulate the admission of attorneys to practice law comes the authority to rescind that license to practice law or otherwise discipline an attorney. The self-regulating nature of the legal profession is often said to be one of the “crown jewels” of the law that makes it unique—lawyers like to boast that they are “a profession not a business.” To be sure, that boast increasingly rings hollow—but the self-regulation of lawyers by lawyers remains a feature of the U.S. legal system today.
And so, when, as has happened recently, a group of lawyers “file a bar complaint” against John Eastman, they are invoking that self-regulation paradigm and asking the state bar—in Eastman’s case, the State Bar of California—to discipline him by revoking his license to practice law. How does that work?
Let’s look at process first. To begin with, since bar discipline relates to the licensure requirement for attorneys, the maximum penalty a disciplinary process can impose directly is permanent forfeiture of a license. The bar can, of course, impose lesser penalties, including temporary suspensions, formal warnings and informal admonitions. And, likewise, it can refer conduct to other authorities for action. But the scope of what the bar can do directly is quite narrow.
Every state is structured differently, but state disciplinary proceedings all share a roughly similar structure involving four distinct components.
First, there is the “prosecutorial” office. This is an office, comprising attorneys, that has the function of determining in the first instance whether or not a complaint warrants investigation and, if it does, whether the facts developed by that investigation warrant bringing a complaint of misconduct against an attorney. As you might expect, this office, like any office with enforcement authority, exercises a great deal of discretion—sometimes dismissing complaints as lacking merit without any investigation at all and at other times bringing the full weight of bar discipline to bear, seeking to take away a lawyer’s license.
Second, there is the respondent. This is the lawyer whose conduct is at issue. Since the entire process is composed of lawyers, this attorney will typically be represented by his or her own lawyer in cases where he or she contests the disciplinary sanction proposed. And the attorney will have a number of procedural rights, including the right to a hearing, to call witnesses, along with others.
Third, there is the adjudicative body. The authority to determine licensing and disciplinary matters typically resides, in the end, with the highest court in a state. But that court does not undertake the fact finding and determination of the matter. That authority usually resides with an adjudicative body of some sort. That body performs an administrative hearing function and makes a report, with recommendations for discipline. Sometimes, a state disciplinary system might have more than one level of administrative process before the state court is involved. Whatever the process, these administrative reports are akin to the report and recommendation filed by a magistrate judge, which can then be rejected, modified or adopted by the next level of review.
Fourth, and finally, there is the highest state court, which holds the ultimate licensure authority. Though it is relatively rare for a court to be required to rule on such matters because respondents choose not to appeal, in the end courts do so as needed and, where appropriate, impose discipline. Of course, an attorney who has a license to practice law in more than one state may be subject to discipline in more than one jurisdiction.
One final procedural point is worth noting: The state courts are not the only systems that adjudicate discipline. Though they do not grant law licenses, each of the federal courts does grant the right and privilege of being admitted to practice before that court. Federal courts, likewise, may adopt disciplinary requirements up to and including permanently barring an attorney from practicing before them.
Thus, it is not unusual for an attorney to be subject to discipline in more than one venue. To take a relatively well-known case, Larry Klayman Jr. was suspended by both the District of Columbia Court of Appeals (the highest local court in D.C.) and the U.S. Court of Appeals for the District of Columbia Circuit (the District’s federal appellate court). His federal case, like many of the cases processed in the disciplinary system, was what is known as a reciprocal case—when a lawyer’s suspension in one state results in a near-automatic suspension in other states or jurisdictions where the lawyer is licensed or authorized to appear.
So much for the “how” of bar discipline. What about the “why” of it? What are the rules a lawyer must follow and whose transgression can result in sanction?
Again, each state differs somewhat, but by and large the states have adopted Rules of Professional Conduct modeled on a set of rules proposed by the American Bar Association. Here, for example, is a link to California’s rules, which are applicable to the complaint against Eastman, since he is a member of the California bar.
The rules cover a variety of requirements related to how lawyers may practice law. There are, for example, rules about when and how to create an attorney-client relationship, about avoiding conflicts of interest, and about the need to be diligent in representing a client. There are likewise prohibitions on bringing non-meritorious claims and rules requiring candor before a tribunal. (These latter two are the ones the courts identified as the most applicable to Rudy Giuliani’s and Sidney Powell’s cases.)
And, finally, there is a set of rules that more generally prohibit misconduct. For example, Rule 8.4 of the California Rules of Professional Conduct says:
It is professional misconduct for a lawyer to:
(c) engage in conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation; [or]
(d) engage in conduct that is prejudicial to the administration of justice[.]
The rules often come with commentary explaining their meaning and limits. For example, the California rule just quoted then provides in a comment that “[t]his rule does not prohibit those activities of a particular lawyer that are protected by the First Amendment to the United States Constitution or by Article I, section 2 of the California Constitution.” It’s not hard to see how that might be relevant to the discussion of Eastman.
Eastman and the Facts
With that context in mind, let’s turn our attention to Eastman. In making the assessment that follows, I’ve reviewed a limited number of materials: First, and most obviously, the two memoranda prepared by Eastman, relating to the Jan. 6 meeting of Congress—the short one and a longer one, the latter of which Eastman says is the more complete. Second, the Claremont Institute’s defense of Eastman, as well as his own defense of his actions and his complaint that he has been “deplatformed” by the Federalist Society. I’ve also reviewed an interview Eastman did with Lawrence Lessig on Lessig’s podcast and, finally, a clip of Eastman from the Jan. 6 rally on the National Mall that preceded the assault on the Capitol.
Let’s stipulate, for purposes of this discussion, that Eastman’s legal views on the role of the vice president in counting electoral ballots (the core of his legal opinions) are incomparably poorly reasoned and without real legal foundation. He might disagree, I’m sure, but there seem to be very few (if any) scholars who agree with him. This is relevant because, as I discuss more fully below, if you think Eastman’s advice is even moderately plausible, then no complaint for discipline about that advice can be sustained.
Likewise, it’s important to note that some of what Eastman did, most notably at the rally on the Mall, was far from just offering a legal opinion on the vice president’s role. In that appearance, he spoke about fictitious “folders” of ballots that were kept in voting machines to be used to allegedly steal the election. And rather than advise the vice president on his role, he urged the crowd to tell the vice president to “let the legislatures look into” the fraud. This seems quite different from a legal analysis and, in context (especially when combined with Eastman’s statement that if Pence did not act, Pence would be “unworthy” of office), more in the nature of advocating action of some sort. To be clear, though, the nature of the action suggested is undefined—it might merely be a call for lawful protest and that, no doubt, is how Eastman would characterize it. Again, if you accept that characterization, then the case for discipline seems to become quite thin.
The bar review of Eastman’s conduct for disciplinary action has begun. A group of lawyers has filed a complaint with the California bar’s Office of Chief Trial Counsel. This office—the “prosecutor” in the system as described earlier—may now dismiss the complaint without investigation or it may choose to investigate and then, of course, act or not as it deems appropriate given the facts, the law, and its discretionary authority.
One final preliminary note: The complaint also alleges that Eastman violated the Rules of Professional Conduct by filing a frivolous pleading, in violation of Rule 3.1, namely his authorship of a motion to intervene on behalf of President Trump in the Texas v. Pennsylvania Supreme Court case (in which the state of Texas sought to have Pennsylvania’s votes thrown out). That case was ultimately dismissed by the court on jurisdictional grounds. Though vast numbers of scholars have, likewise, assessed this suit as frivolous, I leave this particular allegation aside, having not examined it in sufficient detail.
Two provisions of the rules seem generally applicable to Eastman’s conduct. The first, quoted above, from Rule 8.4(c), prohibits a lawyer from engaging in fraud, dishonesty or deceit. The second, the more specific provision of Rule 4.1(a), particularizes that general rule in the context of legal representation and says that “in the course of representing a client a lawyer shall not knowingly ... make a false statement of material fact or law to a third person.”
Let’s start with Eastman’s legal advice regarding the vice president’s power to overturn the Electoral College votes. I already mentioned the premise that Eastman’s legal advice was wrong—because if it were correct, or even arguably correct (in the nature of a 70/30 proposition), the advice could not form the basis for discipline. It isn’t a violation of legal ethics to give legal advice that loses a case—if it were, every losing lawyer would be subject to discipline.
And even if the advice is more flawed—say 95 percent assuredly wrong—that is also likely insufficient to merit disciplinary proceedings. Giving bad legal advice is not a violation of the Rules of Professional Conduct. It might be malpractice if there is an adverse effect on the client, but in the context of legal advice, the rules speak to fraud and deceit, which require something more than rank incompetence. There is a separate provision regarding required competence, but it is rarely invoked as a ground for discipline, since competence is almost always in the eye of the beholder.
So, the question must be Eastman’s intent—did he give legal advice to Vice President Pence, knowing (or reasonably believing) that the advice was wrong and misleading? Given his response, the premise of Eastman’s defense is likely to be that his views were not pretextual but, rather, come from a genuinely heartfelt view of the law (one that I think is warped beyond description but, nonetheless, he says he came by honestly).
In the end, the question for the disciplinary process will be whether or not to credit Eastman’s claim of good faith (which is not to say he has the burden of proof; that actually lies with the bar counsel). In other words, was Eastman’s advice merely “very wrong,” or was it so false and misleading as to constitute fraud and deceit? And if it was the latter, was Eastman’s deceit knowing, or was it, as he might argue, inadvertent?
How you answer those questions really depends on where you sit. Eastman himself has tried to retcon his work. He has said that, contrary to the seeming text of his memoranda (which were quite assertive as to the law), he orally advised Pence that the vice president’s authority was an open question and that Pence would be foolish to act in the absence of a rival set of state electors. Eastman has also noted that his views on vice presidential power have what, in his view, are significant legal precedents from the Founding era.
Standing against this benign account of events (in effect, implying that his theoretical legal advice was misconstrued) are several rather obvious counterpoints. First, as many observers have noted, the claimed oral advice to the vice president is far less assertive than the manifestly declarative advice provided in Eastman’s memoranda. This raises a factual question of exactly what advice was given and when and how it was understood by those, like Trump and Pence, to whom it was directed. Those memoranda, in turn, contain a number of false factual assertions about the state of electoral play, raising a question of possibly deliberate deceit in creating the advice, which might negate claims of good faith. There is reason, therefore, to doubt Eastman’s self-serving, post-insurrection account of events.
Second, Eastman still seems to be of the view, even at its most limited, that Pence could unilaterally delay the counting of the electoral ballots, in violation of the Electoral Count Act, a view that is equally at odds with accepted analysis. Maintaining such an outlier view would, likewise, bear on Eastman’s intent and the good faith with which he was acting—it could serve as an indicator of bad faith, though he might argue it should be construed as evidence that his views, however wrong, were heartfelt.
Third, Eastman’s factual defense is also inconsistent with Vice President Pence’s reaction to Eastman. Pence’s letter of Jan. 6 seems, clearly, to be reacting to the stronger version of Eastman’s claims—a version Eastman now walks back from.
Finally, Eastman’s efforts to explain his actions are also subject to significant doubt in light of his speech at the Jan. 6 rally—a speech in which he went well beyond the legal advice he gave and linked that advice in public to manifestly false claims of fraud that had no factual basis. Eastman even went so far as to suggest that if Pence refused to postpone the electoral count, he would be “unworthy” of his office. Surely those near-contemporaneous statements by Eastman bear on his intent in advising Pence.
Taken together, this recitation of facts suggests at least two things to me: First, to the extent there is a factual dispute about what exactly Eastman said in the Oval Office meeting with Trump and Pence and how they perceived it, an ethics investigation would need factual development; and second, whatever the results of that investigation, any disciplinary charge related to that event would turn on how the bar and the adjudicative finder characterized Eastman’s intent. Eastman will likely say he was zealously advocating for a client; others will say he was lying.
Turning now to Eastman’s speech at the Mall, there is, I think, less factual uncertainty regarding his conduct and, oddly enough, for me there is greater certainty about the ethics of his actions. Eastman made egregiously false statements regarding the so-called election folders that “stole the election.” He did so at a time he was representing President Trump (indeed, he refers to a pending petition for review at the start of his remarks). And, while representing that client, he appears to have made what he at least should have known was a false statement about a material fact—that is, the election folder fraud claim—to third parties, namely the attendees at the Mall rally. He may therefore fairly be thought to have transgressed both the specific prohibition of Rule 4.1(a) and the more general anti-deceit provisions of Rule 8.4(c). Motivation will be less of an issue here because the video evidence of the false statements is palpable, as is their falsity.
Eastman’s defense in this case might be twofold. First, he might claim that he truly believed the Trumpist election lies—and here, again, your mileage may vary, but for me the proposition would be highly doubtful. Second, he may well contend that his Mall speech was protected First Amendment speech. I have a good sense of where my analysis would lead me on this point: I find Eastman’s defense unpersuasive. But it seems equally certain that Eastman has a defense to make. In short, by no means would this be a slam-dunk for the bar disciplinary authorities.
Trump’s defenders sometimes argue that his actions were not problematic in part because they did not succeed. At least insofar as I understand California law, that defense would not be available to Eastman. A determination that a lawyer has engaged in unethical deception does not depend on whether the lawyer’s dishonesty achieved its goal or resulted in harm. The test of culpability is not whether the deception succeeded. Once intent to deceive has been shown, “it is immaterial whether any harm was done, since a member of the State Bar should not under any circumstances attempt to deceive another person.”
A colorable case of ethical misconduct, in short, can be made against Eastman. Certainly, to the extent that it turns on understanding his motivation and intent, the complaint against him provides predication for an investigation. And, were the complaint to be validated, it would justify sanctions against his license.
For me, that is sufficient. The bar, as an independent professional organization, has a general obligation to maintain the standards of its members. This has less to do with licensure than it has to do with the overall confidence of society in the neutrality of law and in the integrity of the profession. Were legal disciplinary authorities to fail to address the actions of Eastman (and the other lawyers for Trump who engaged in related activity), it would call into question the nature of the bar’s independence and also whether its concept of legal discipline has any real meaning at all. Shakespeare wrote, “The first thing we do, let’s kill all the lawyers,” not because he hated lawyers but because he recognized that lawyers were a bulwark against anarchy. If they are to remain so, an institutional response against those who supported the insurrection is required—and so, if I were the California bar’s disciplinary authorities, I would commence an investigation of Eastman and see where it leads.
But this response is also inadequate. The same questions of intent and of ultimate harm also animate the far graver questions about the stability of democracy that underlie the congressional investigation of Jan. 6. They would, as well, be at the core of any criminal investigation that might be undertaken by the Department of Justice (which, to date, has seemed to focus only on the lower-level violence and crimes of the people who stormed the Capitol). While an examination of Eastman’s conduct by bar disciplinary authorities is welcome, it is, candidly, small beer in the greater scheme of things.
Author's note: Since publication, a new video of Eastman has surfaced in which he appears to re-embrace the legal analysis he had tried to distance himself from. In the video, Eastman appears to claim that Vice President Pence didn't take his solid legal advice and overturn the election because Pence is "an establishment guy." In this post, I reviewed the ethics allegations against John Eastman. One of my principal conclusions in that post was that the factual circumstances of Eastman’s conduct were muddy and that he had tried, after the fact, to walk back the import of his conduct and offer a post-hoc softening of his memo. As this video shows, Eastman is not doing much to calm the waters.