While the lawsuits might curry favor with the president, an ABA Legal Fact Check released Dec. 4 explains they carry potential peril for these lawyers, who are officers of the court and could face sanctions ranging up to disbarment if they fail to follow court rules.
Lawsuits are governed by Rule 11 of the Federal Rules of Civil Procedure, which most state judicial systems have adopted in some form. This rule requires that, to the best of the lawyer’s knowledge, the legal theory cited in the suits they file is “warranted by existing law or by a nonfrivolous argument … or the establishment of new law.” Examples of “new legal theories” accepted by the U.S. Supreme Court include the argument in the Brown v. Board of Education school desegregation decision in 1954 and the same-sex marriage argument that led to the Obergefell decision in 2015.
In the case of the Trump-related suits, typically a filing sought emergency relief and court rulings within a few days, which meant that the duty of lawyers to find and present supporting facts was accelerated by their own need for a quick, court decision. But the judicial rebukes from state and federal judges sometimes carried harsh language. One Trump appointee on a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit wrote in a Pennsylvania case, “charges require specific allegations and then proof. We have neither here.” In a Georgia case, another Trump appointee dismissed the case, saying there was “no basis in fact and law.”
The new ABA Legal Fact Check points out that the standard is high for imposing sanctions against lawyers, and no state or federal judge has yet to sanction the lawyers under state judicial rules or federal Rule 11. It also notes that complaints have been filed with state disciplinary agencies related to at least 23 Trump-allied attorneys. Whether these lawyers violated applicable state rules of professional conduct will be determined via respective proceedings on a case-by-case basis.