To Disbar or Not to Disbar?

By Joseph Anderson
Joe Anderson is a sophomore in the College studying Political Science and History. In addition to writing for the Roundtable, he is a member of the Penn Policy Consulting Group and Penn Debate Society, and a fellow at the Marks Family Writing Center.

Two days after a pro-Trump mob unraveled congressional proceedings to certify the 2020 Electoral College results, students and alumni of law schools across the country petitioned for state bar associations to disbar Senators Ted Cruz and Josh Hawley, arguing they encouraged the Capitol siege by objecting to Biden’s victory [1]. The senators called for an electoral commission to investigate the contrived fraud claims, and to grant state legislatures the right to change their votes as they saw fit [2]. Their objections legitimized the lies which animated the siege, but disbarment never came to fruition. It was hindered by state bar associations’ unwillingness to involve themselves in politics. Little could be done: the senators’ actions were sanctioned by institutional procedure, and no precedent exists for disbarring elected lawyers for their votes, no matter how unseemly. While Hawley and Cruz couched their objections in concerns about election integrity, their remedy would have overruled state law and opened the door to undermining millions of legal votes. But the Missouri, Texas, and D.C. associations had their hands tied.

Their refusal to act is not unexpected. State bars historically revoke membership over serious crimes or egregious court behavior. Some pro-Trump lawyers who peddled the most extreme conspiracy theories face federal investigation and potential disbarment [3]. But courtrooms have inconsistent standards for sanctioning lawyers peddling antidemocratic arguments that stop short of conspiracy theorizing. Charles Geyh, a professor at the Indiana University Maurer School of Law, explained that judges are sensitive to being viewed as political, and are unlikely to sanction lawyers representing the President, even if they have thin evidence [4]. The Federal Rule of Civil Procedure 11, known as Rule 11, forbids lawyers from bringing cases before the court for any dishonest purpose, “such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation” [5]. The American Bar Association prohibits lawyers from “bring[ing] or defend[ing] a proceeding” unless “there is a basis in law and fact for doing so” [6]. Yet when politics are brought into the fray, judges and the bar alike are less likely to penalize lawyers who do just that: argue cases that cause unnecessary delay, skirting sound legal argumentation to serve partisan ends. These lawyers, authorized by the bar to practice law, are seemingly impervious to its own rules. Lawmakers who propose shocking extralegal procedures are not the only ones who can sacrifice the law for politics; trial lawyers who are subject to Rule 11 and the ABA’s policies can, too. The systems meant to keep lawyers honest often lack the language for doing so when those lawyers represent powerful politicians, or are powerful politicians themselves.
​
State associations’ refusal to disbar Cruz and Hawley raises questions as to whether disbarment processes built for obvious legal threats are able to respond to subtle ones. The senators from Texas and Missouri saw the best legal argument for their client—the President—and acted on it, to the detriment of the rule of law. Their objections were based on sentiment among Trump’s base, not careful legal rationale. They sought to circumvent election law after the President lost, a remedy laughably disproportionate to their evidence. Given the choice between following the law and scoring political points, they chose the latter. As a result, Cruz and Hawley sublimated dangerous conspiracy theories into ordinary legal processes, a maneuver too banal for the bar to care but far too destructive to be let lay. The senators’ challenge to the integrity of the law was so fundamental as to exceed the scope of the disbarment process. The state associations know that disbarring the senators would mean revamping their rules entirely; they would have to combat unprecedented challenges to the legal system coming from the floor of the United States Senate. Expanding the bar’s criteria for disbarment would mean having hard conversations about which unmerited arguments threaten our democracy too fundamentally to be entertained. But should state bar associations refuse to disbar lawyers who go through legal avenues to undermine democratic institutions, they would be acknowledging that lawyers are hired guns for powerful politicians—readily available to turn their legal prowess on the legal system itself. Determining if lawyerly independence is worth litigating democracy requires the bar to do more than examine its past procedures. It must seriously consider the future of those procedures in a rapidly changing political environment—one in which furthering partisan goals and following the law is increasingly a zero-sum game.

[1] Muaroni, Angelica. “Thousands of lawyers and law students petition to disbar US Senators Josh Hawley and Ted Cruz.” (14 January 2021). Jurist Legal News & Commentary. https:// www.jurist.org/news/2021/01/thousands-of-lawyers-and-law-students-petition-to-disbar-us-senators-josh-hawley-and-ted-cruz/.
[2] “Joint Statement from Senators Cruz, Johnson, Lankford, Daines, Kennedy, Blackburn, Braun, Senators-Elect Lummis, Marshall, Hagerty, Tuberville.” (2 January 2021). U.S. Senator Ted Cruz. https://www.cruz.senate.gov/?p=press_release&id=5541.
[3] Stone, Peter. “Lawyers face fallout from fueling Trump’s false claims of election fraud.” (13 January 2021). The Guardian. https://www.theguardian.com/law/2021/jan/13/donald- trump-lawyers-fallout-election-fraud-claims. 
[4] Olivia Rubin and Matthew Mosk. “As lawyers keep pushing Trump election challenges, calls for sanctions mount.” (5 December 2020). ABC News. https://abcnews.go.com/Politics/ lawyers-pushing-trump-election-challenges-calls-sanctions-mount/story?id=74544823.
[5] “Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions.” Cornell Legal Information Institute. https://www.law.cornell.edu/rules/ frcp/rule_11.
[6] “Rule 3.1.” (10 April 2020). American Bar Association. https://www.americanbar.org/ groups/professional_responsibility/policy/ethics_2000_commission/e2k_rule31/.

The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.