I saw the above tweet from Kyle Griffin (@kylegriffin1) on June 18, 2021, regarding sanctions against Sidney Powell, Donald Trump’s attorney during the second impeachment hearings who lied when she claimed the 2020 election was fraudulent, and I thought, it’s about time.
As Donald Trump was being impeached again, I was taking my paralegal certificate courses and watching as so many of the attorneys involved (Rudy Giuliani, Sidney Powell) were lying or otherwise engaging in unethical behavior. This included legislators like Ted Cruz, Lindsey Graham, Mike Lee (Senators who gave Trump’s defense team advice during the impeachment trial) and Josh Hawley (Mr. Fist Pump to Encourage the Insurrectionists), all of whom are lawyers and should know the American Bar Association’s Model Rules of Professional Conduct.***
During my paralegal course, we had several assignments related to legal ethics and had to refer to the ABA’s Model Rules. I have to admit, I had trouble with the ethics assignments because so many situations are not cut and dry ethically. I tended to want to hold a harder line in squishier situations and not be wishy-washy about doing the right thing.
For example, one scenario we were presented had to do with me attending a conference paid for by my employer and other staff members wanting to leave to go site-seeing. What would I do in such a situation?
I would stay at the conference because my employer was paying for me to be there and, presumably, also paying my wage to attend. It wouldn’t be right to skip out. While I wouldn’t tattle on those who had left, I certainly wouldn’t help them if they were called to the mat. That smacks of all the group assignments in high school where I did most of the work and others coasted on my effort, which stunk with unfairness.
The “right” answer was apparently to let the others slack off and share my conference notes with them. Um, excuse me? Haven’t working adults grown beyond high school group assignments? Why is this slacker behavior still rewarded with the expectation that those who did the work are just supposed to hand it over?
I really wanted more discussion on the ethical scenarios presented so I could understand why this would be allowed, but the online course wasn’t geared for that.
The behavior of the lawyers during Trump’s second impeachment were not loosey-goosey ethics violations, however. They crossed major ethical lines in a gobsmackingly obvious way and all of these attorneys should have been sanctioned or disbarred, as this opinion article from The Kansas City Star editorial board discussed in regards to Josh Hawley’s behavior.
So why weren’t they?
Another experience in my paralegal coursework may explain why.
In discussing ethics for paralegals, my primary textbook, Introduction to Paralegalism by William P. Statsky, made clear that paralegals were required to remind their supervising attorneys of their ethical obligations in gentle ways, in essence helping them to remain ethical.
From Statsky: “Paralegals are on the front line. One of their primary responsibilities is to help an attorney avoid being charged with unethical conduct. A recent paralegal seminar conducted by the Los Angeles Paralegal Association was entitled “Law Firm Ethics: How to Keep Your Attorneys off ’60 Minutes’!” Hence paralegals must be intimately familiar with ethical rules.” William P. Statsky, Introduction to Paralegalism: Perspectives, Problems, and Skills 218 (8th ed. 2016).
This is a very disconcerting opening to paralegal ethics, particularly because paralegals are required to be supervised by an attorney. So, in essence, the underling is expected to be in charge of their supervisor’s behavior. Just call paralegals “Jiminy Cricket.”
It’s a heavy responsibility for someone who has very little power in a law firm or in the legal profession in general.
To be fair to Statsky, a lot of the chapter on paralegal ethics serves as a warning, giving paralegals examples of unethical situations to watch out for, because an attorney behaving unethically reflects poorly on the paralegal, as well, even if the paralegal wasn’t part of the unethical activity.
Statsky points out that “The ABA publishes ethical rules but does not discipline attorneys for unethical conduct.” William P. Statsky, Introduction to Paralegalism: Perspectives, Problems, and Skills 214 (8th ed. 2016).
So, those of us assuming the ABA was in charge of disciplining the attorney politicians in regards to the second impeachment or the insurrection (an easy assumption to make due to the fact that the ABA produced the Model Rules) were waiting in vain. Discipline of attorneys happens at the state level, with cases of misconduct “investigated by a disciplinary body appointed by the state’s highest court.” William P. Statsky, Introduction to Paralegalism: Perspectives, Problems, and Skills 214 (8th ed. 2016).
This explains why the Michigan Attorney General is pursuing sanctions against Sidney Powell. It also means we should be looking to the states to sanction or disbar other attorneys and attorney legislators behaving unethically in regards to the second impeachment trial and the insurrection. If we want attorneys to behave ethically, we have to hold them to account for unethical conduct. While it might seem easiest to let this behavior slide, it’s not good for engendering trust in lawyers or for upholding our democracy.
***In applying the ABA’s Model Rules to class assignments with ethical scenarios, I found it difficult to figure out which rules applied to different situations. Sometimes it felt like multiple rules applied, so it was hard to determine which rule was primary. (Perhaps this was just an issue in applying the rules to coursework.) The Model Rules felt somewhat disorganized to me and I hope an update of them will be forthcoming. The ABA could also provide some scenarios to help those of us learning the rules figure out how to apply them.