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A response to Paxton’s response

As you may recall, back in June we learned about a State Bar of Texas complaint against Ken Paxton for his ridiculous and seditious lawsuit that attempted to overturn the 2020 Presidential election. That complaint was filed by four people: Kevin Moran, retired journalist, President of the Galveston Island Democrats; David Chew, former Chief Justice of the 8th Court of Appeals; Brynne VanHettinga, a now inactive member of the Texas Bar; and Neil Cohen, a retired attorney. A second complaint was later filed by Lawyers Defending American Democracy, part of a group that included four former Presidents of the State Bar of Texas.

I’ve had some email correspondence with Neil Cohen, who was introduced to me via a mutual friend, since that first complaint came to light. He sent me the following analysis of Paxton’s responses to the complaints:

Ken Paxton’s recent [7/15] Response to four Grievances arising from his December lawsuit to overturn the election demonstrates that his claims of a stolen election and of illegal voting procedures were merely posturing to improve his political standing. The top law officer of Texas put our system of democracy in grave danger for his own political benefit.

The Grievances charged that his lawsuit is filled with falsehoods and absurd legal claims, thus violating attorney disciplinary rules. Paxton’s response failed to defend large sections of the lawsuit. As to his claims of massive voting improprieties, Paxton stated that he had hoped to develop the evidence during trial. (1) That, however, was his only evidence in support of his stolen election claims. Thus, Paxton’s tacit admission that he has no evidence to support his claims is strong proof that there is no evidence of a stolen election. The “Big Lie” is indeed a big lie. His admission is also in marked contrast to his repeated claims in the month between the filing of the lawsuit and the meeting of the electors on Jan 6 that the election was stolen and his urging Trump supporters to take action. Those claims culminated in Paxton’s appeal to a mob to “keep fighting” shortly before they invaded the Capitol Building.

As to legal claims, Paxton did not offer a defense of several essential claims (2), including the most important, that the proper remedy was overturning the election and disenfranchising millions of voters. On the issue of standing, where by a 7-0 vote [two justices ruled based on other issues] the Supreme Court had rejected Paxton’s arguments that Texas had the right to dictate to four other sovereign states how they conducted their election lawsuit, Paxton merely reiterated his arguments.

Instead of better defending his lawsuit, Paxton instead relies on two very weak procedural arguments. First, the Bar shouldn’t hear the Grievances because the filers weren’t his client. (3) The Disciplinary Rules, however, specifically provide that anyone with information about rule violations can file a grievance. (4) He also argues, without citing cases specific to attorney discipline, that the separation of powers doctrine prevents a court system from disciplining an attorney general for a court filing. (5) This is contrary to the cases I found. (6) Also, moving from the abstract level of his argument to the specific facts of this case, Paxton is arguing for the privilege to lie and to bring lawsuits that lack any reasonable basis. That privilege is non-existent. In fact, an attorney appearing before a court acts as an officer of the court and is therefore subject to discipline from the court (and from the relevant bar associations).

The weakness of Paxton’s Response demonstrates that the lawsuit violates attorney disciplinary rules and that his claims of a stolen election are nonsense. Because of the serious consequences of Paxton’s action, including an invasion of the Capitol Building, the Bar should impose its most serious punishment, disbarment. In addition, Paxton should be removed from office.

1 Response, pp. 12-13.
2 What he did defend — See Response, p. 8 (standing), p. 10 (electors clause), p. 11 (equal protection and due process).
3 Response, p. 13.
4 https://www.law.uh.edu/libraries/ethics/attydiscipline/howfile.html The second question (which is not numbered) states, "Any person who believes that a rule of professional conduct has been violated may file a complaint with the State Bar."  (emphasis added).
5 Response, p. 20
6 In re Lord, 255 Minn. 370 (Minn. 1959) • 97 N.W.2d 287; Massameno v. Statewide Grievance Committee, 234 Conn. 539 (Conn. 1995) • 663 A.2d 317.

I have a copy of the Paxton response here, and further notes from Cohen on the response are here.

As it happens, there was also a story in Salon about the complaint and Paxton’s limited and technicality-laden response to it:

Texas Attorney General Ken Paxton, an ardent Trump supporter who was the lead plaintiff in a last-ditch Supreme Court case aimed at overturning the 2020 election, appears to be backing away from his past claims of widespread election fraud. Facing discipline or even potential disbarment in Texas, Paxton now merely alleges that there were “irregularities” in battleground states, while still suggesting those could somehow have affected the overall result

Paxton’s apparent retreat came earlier this month in response to an array of grievances filed by several members of the Texas bar: retired lawyer Neil Cohen; Kevin Moran, president of the Galveston Island Democrats; former Texas Court of Appeals Chief Justice David Chew; and Dr. Brynne VanHettinga. In their initial complaint, the group argued that Paxton should face professional discipline over his bid to undermine the 2020 presidential election, saying that Paxton’s December petition to the U.S. Supreme Court, arguing that President Biden’s victory should be set aside, was both frivolous and unethical.

In Paxton’s response to their grievances, which was provided to Salon, the attorney general argued that “Texas’s filings were not frivolous” because “the 2020 election suffered from significant and unconstitutional irregularities in the Defendant States.” Paxton further claimed that, by this logic, he and his office “did not violate the disciplinary rules.”

Paxton’s response is a clear departure from his previous rhetoric, much of which explicitly supported former President Trump’s grandiose conspiracy theories about systemic election fraud. Earlier this month, Paxton told a Dallas crowd at the Conservative Political Action Conference that his “fight” for election security “is not done.”

“When people tell you there is no election fraud, let me just tell you my office right now has 511 counts in court because of COVID waiting to be heard,” Paxton continued. “We have another 386 that we’re investigating. If you add those together, that’s more election fraud than my office has prosecuted since it started investigating election fraud years and years ago.”

Paxton is notably less bombastic in his response to the Texas bar, but mentions the same “irregularities” that his original Texas suit claimed had tainted the elections in swing states such as Pennsylvania, Georgia, Michigan and Wisconsin. Effectively all of those supposed “irregularities” were changes in voting rules made in response to the COVID-19 crisis, which created significant challenges for both in-person and absentee voting.

[…]

In an evident attempt to ward off the threat of disbarment, Paxton’s response seeks to explain why the suit had any legal basis or “standing.” He argues, somewhat confusingly: “Texas’s assertion that it had standing in Texas v. Pennsylvania could not have been frivolous. There are no Supreme Court cases contrary to its position that it had standing.”

But Paxton indirectly admits, in Cohen’s view, that he had no real evidence of fraud, and apparently “hoped to develop the evidence during discovery.” In other words, his entire case could be interpreted as a fishing expedition, or just an attempt to rile up the Trump base with unsupported allegations. “That’s in contrast to his behavior for the month after filing the lawsuit,” Cohen said, “when he repeatedly claimed the election was stolen and urged people to take action.”

So now you know. I have no idea when the State Bar may issue a ruling, and as richly as Paxton deserves to be disbarred, I can’t see them doing much more than issuing some kind of reprimand. But at least that would be something. My thanks to Neil Cohen for the info and the guest post.

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2 Comments

  1. Bill Daniels says:

    ” (3) The Disciplinary Rules, however, specifically provide that anyone with information about rule violations can file a grievance.”

    This is good information. I’m going to file a grievance with the disciplinary committee against Lee Merritt, for violating Texas law by illegally blocking a roadway and thus, detaining motorists who were stuck in the ensuing traffic jam and unable to leave the scene. Sounds a lot like kidnapping, really.

    Here’s photographic proof of Merritt’s crime(s).

    https://www.dallasobserver.com/news/conservative-politicians-and-journalists-condemn-plano-protest-for-marvin-scott-iii-12018894

    There’s no attorney client privilege involved when the attorney is involved in the conspiracy, right? Lee himself is illegally blocking the road in this picture, and violating the civil rights of the rightfully irate motorist who is simply demanding that his right to freely travel unhindered, be honored by Merritt.

    As an officer of the court, doesn’t he have a duty to see the law upheld, vs. participate in breaking the law? How Merritt and his fellow criminals avoided arrest is bewildering. They didn’t even try to hide their crimes.

    And this criminal wants to be the new AG? Paxton should have had him arrested right away, along with the rest of them.

  2. Kibitzer Curiae says:

    GOING AFTER KEN PAXTON AND HIS “CO-CONSPIRATORS”  A DISSENTING VIEW

    Re: “There’s no attorney client privilege involved when the attorney is involved in the conspiracy, right?”

    Something to chew on (no pun intended), in relation to Paxton’s suit against the four other states? Could Paxton have conspired with other attorneys, not to mention with Trump, when he attempted to overturn the 2020 presidential election result with help of the US Supreme Court?

    Second, can there even be an attorney-client relationship between Paxton (the lead lawyer) and the State? Who is the State of Texas but a corporate juridical entity that no one can speaks for in court but the AG (assuming that the authorization for the AG to represent the State in Article 4, Section 22 is properly read broadly to include the SCOTUS, not just the state supreme court).

    Note that the Texas AG is independently elected, and is not a member of an “administration” headed by the Governor. Practically speaking, Paxton, suing in the name of State, is not taking any instructions from any client, or anyone else that may have a claim to be speaking for the State (such as the Governor or the Texas Legislature as an institution).

    So, he is the principal/client and the attorney on the case all in one. He takes his own advice and instructions only, and to the extent there is discussion among his lieutenants and underlings, and perhaps relevant input, Paxton is the boss and has the last word.

    More like a pro se litigant representing himself doing business in the name of State of Texas, albeit with a law license.

    How is that relevant?

    Well, the attorney disciplinary rules govern the business of lawyering, which involves the representation of a client, and the primary purpose is to assure minimum levels of quality performance of the legal service provided for a client, which is the rationale for the licensensing requirement and the mandatory bar (a species of monopoly) in the first place.

    Paxton sued the other states in the name of The State of Texas by virtue of holding the office of Texas attorney general. No principal-agent relationship here, really. And as for the conspiracy, isnt’ there already a federal court ruling that the attorneys in the OAG cannot conspire with each other because they are all a single corporate entity. But that’s not all.

    The second implication is that Paxton’s filing of the petition in Texas v. Pennsylvania et al was state action and is therefore imbued with sovereign immunity. The State of Texas cannot be sued without its consent or legislative abrogation of immunity. Nor is the State of Texas subject to the attorney disciplinary rules.

    Note that the case of Rudy Guiliani is different. He acted as a private retained attorney and Trump wasn’t a party in the capacity of president of the United States. That doesn’t describe the actions of Paxton in Texas v. Penn..

    Okay, so the above ruminations that equate Paxton in this official capacity as chief lawyer for the state with the State of Texas itself may come across as wacky to legal scholars and jurists.

    Assuming that is so, let’s say that this disciplinary action againt Paxton as a licensed lawyer for conduct comitted in his capacity as AG in the name of the State of Texas is proper and has merit. Why would the same then not also apply to the other attorneys on the Motion for Leave to File Bill of Complaint, and the accompanying and supplemental filings?

    Such as Brent Webster, First Assistant AG, notably.

    Why shouldn’t Webster have a disciplinary complaint filed against him too? And unlike Paxton, he has no state constitutional basis to speak for the state. In other words, Webster clearly functioned in the role of an attorney in the traditional sense of the term, not as a principal.

    The same goes for former Harris County District Judge Grant Dorfman (R), who went to work for Paxton and had his name featured on a subsequent filing as an additional attorney for the State, along with Aaron Reitz (Deputy Attorney General for Legal Strategy), Lesley French Henneke (Chief of Staff), and Austin Kinghorn (General Counsel). 

    The same does *not* go for Kyle Hawkins, who was the Solicitor General at time, and did *not* participate in the filing of the complaint that forms the predicate for the disciplinary complaint against Paxton.

    The absence of the Texas Solicitor General, who would regularly and routinely represent officials of the State of Texas in federal appellate courts and in the state supreme court, would also weaken the contention that the other Texas attorneys had no choice but to appear as additional attorneys on the case.

    IF HIS DEED WAS HYPER-EGREGIOUS, WHY DID THE SCOTUS NOT SANCTION PAXTON?

    Let’s not forget that the SCOTUS was perfectly capable of dealing with the Paxton filing, and dismissed it on the threshold issue of lack of standing.

    The assortment of notables that prepared the disciplinary complaint against Paxton are now trying to relitigate the merits of the case that the SCOTUS never found worth going forward with, and are doing so on the premise that such an unprecedented case would be governed by the preliminary-injunction standard that applies in federal district courts. Who is to say?

    And why should those merits now be regurgitated — and negated element by element, of facts and law — in an attorney disciplinary proceeding in a suit-within-a-suit manner?

    It doesn’t seem the proper forum. — A law review article may be a more suitable vehicle to lay out the want of merits, and the reasons why.

    Not to mention that the U.S. Supreme Court could have imposed sanctions on Paxton, had they seen fit to do so. But there was not even one solitary statement by a single member of the court suggesting that Paxton had committed a disciplinary infraction.

    The SCOTUS found this case worth barely a paragraph:

    The State of Texas’s motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot. Statement of Justice Alito, with whom Justice Thomas joins: In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction. See Arizona v. California, 589 U. S. ___ (Feb. 24, 2020) (Thomas, J., dissenting). I would therefore grant the motion to file the bill of complaint but would not grant other relief, and I express no view on any other issue.

    Docket here:
    https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/22o155.html

    Not to mention that federal sanctions rule (FRCP 11, counterpart to TRCP 13 in Texas state court) has a safe-harbor provision that would presumably have allowed Paxton to withdraw his original filing and supersede it with a corrected one, had a motion to strike or for sanctions been filed, or the SCOTUS found Paxton’s work product to be beyond the pale sua sponte.

    Instead, numerous other states wanted to get into the act on Paxton’s side, and there lies the (political) problem.