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Lawyers Defending American Democracy

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.

Another State Bar complaint against Paxton

He certainly deserves all the trouble this has brought him. Whether any of it leads to actual consequences, we’ll have to see.

Best mugshot ever

Four former presidents of the State Bar of Texas joined a group of high-profile lawyers on Wednesday to file an ethics complaint against Texas Attorney General Ken Paxton, a Republican, over his efforts to overturn President Joe Biden’s 2020 election victory against former President Donald Trump.

Paxton filed a widely criticized lawsuit with the Supreme Court in December, in which he sued the battleground states of Georgia, Michigan, Pennsylvania and Wisconsin over what he claimed were “unconstitutional irregularities” in their election processes. The Supreme Court rejected the lawsuit, which came as Trump and his allies repeatedly promoted baseless allegations that the 2020 presidential election was “rigged” or “stolen.”

The organization Lawyers Defending American Democracy, which asserts it is not partisan, filed the lawsuit in connection with 16 prominent Texas attorneys.

“The injunction Mr. Paxton sought with the Supreme Court would have usurped the presidency for the next four years and cast doubt on whether truly democratic presidential elections would ever have been restored in America,” Jim Harrington, one of the complaints signers and a retired founder of the Texas Civil Rights Project, said in a statement published on LDAD’s website.

Harrington said Paxton’s actions “demonstrated his disregard for the ethical rules which govern lawyers and for our country’s democratic principles.”

As you may recall, there’s already such a complaint against Paxton. I don’t know how the State Bar works, but I would assume these two would be combined. Reading that earlier post reminded me that Paxton was supposed to have responded to that complaint within 30 days, and indeed he has responded, asking for the complaint to be dropped – he’s basically saying that the original complainant doesn’t have standing to file against him. As a non-lawyer, I shrug my shoulders as I have no way to evaluate this claim on my own. Those of you who are lawyers, feel free to enlighten us.

Above the Law adds some details.

The bar complaint alleges that Paxton violated the Texas Disciplinary Rules of Professional Conduct by filing a frivolous suit, making false statements of fact and law to a tribunal, engaging in deceitful conduct, and failing to uphold the Constitution.

The complainants point to Paxton’s representation that Biden’s odds of winning the election were less than one in a quadrillion, a gross distortion of a economist Charles Cicchetti’s assertion that this was the probability of Biden winning if the votes before and after 3am were randomly drawn from the population as a whole. Cicchetti’s analysis was ridiculous on its face even before Paxton mangled it — the differential between in-person votes favoring Trump and absentee ballots favoring Biden had been widely predicted. And furthermore, smaller rural areas, which tend to lean Republican, were always going to complete their counting before cities like Philadelphia and Atlanta.

As for misstatements of law, the complainants point to Paxton’s bizarre theory of standing which “flew in the face of the Electors Clause and the bedrock constitutional principle of each State’s sovereignty within our federal system.”

“The standing to sue Mr. Paxton sought from the Supreme Court had no basis in law and would have been a prescription for an autocratic President to perpetuate his power indefinitely against the will of the voters,” said Gershon (Gary) Ratner, co-founder of Lawyers Defending American Democracy and principal author of the complaint.

Here’s the LDAD statement on their complaint, and here’s the complaint itself for your perusal. Note that they had called for Paxton to be sanctioned within a week of his filing that ridiculous lawsuit. I don’t know if it took them this long to prepare their complaint or if there was something else going on, but here we are. I don’t know enough to add anything else at this point, so stay tuned.

State Bar investigating Paxton

Well, well, well

Best mugshot ever

The Texas bar association is investigating whether state Attorney General Ken Paxton’s failed efforts to overturn the 2020 presidential election based on bogus claims of fraud amounted to professional misconduct.

The State Bar of Texas initially declined to take up a Democratic Party activist’s complaint that Paxton’s petitioning of the U.S. Supreme Court to block Joe Biden’s victory was frivolous and unethical. But a tribunal that oversees grievances against lawyers overturned that decision late last month and ordered the bar to look into the accusations against the Republican official.

The investigation is yet another liability for the embattled attorney general, who is facing a years-old criminal case, a separate, newer FBI investigation, and a Republican primary opponent who is seeking to make electoral hay of the various controversies. It also makes Paxton one of the highest profile lawyers to face professional blowback over their roles in Donald Trump’s effort to delegitimize his defeat.

[…]

Kevin Moran, the 71-year-old president of the Galveston Island Democrats, shared his complaint with The Associated Press along with letters from the State Bar of Texas and the Board of Disciplinary Appeals that confirm the investigation. He said Paxton’s efforts to dismiss other states’ election results was a wasteful embarrassment for which the attorney general should lose his law license.

“He wanted to disenfranchise the voters in four other states,” said Moran. “It’s just crazy.”

Texas’ top appeals lawyer, who would usually argue the state’s cases before the U.S. Supreme Court, notably did not join Paxton in bringing the election suit. The high court threw it out.

Paxton has less than a month to reply to Moran’s claim that the lawsuit to overturn the results in Georgia, Michigan, Pennsylvania and Wisconsin was misleading and brought in bad faith, according to a June 3 letter from the bar. All four of the battleground states voted for Biden in November.

From there, bar staff will take up the case in a proceeding that resembles the grand jury stage of a criminal investigation. Bar investigators are empowered to question witnesses, hold hearings and issue subpoenas to determine whether a lawyer likely committed misconduct. That finding then launches a disciplinary process that could ultimately result in disbarment, suspension or a lesser punishments. A lawyer also could be found to have done nothing wrong.

The bar dismisses thousands of grievances each year and the Board of Disciplinary Appeals, 12 independent lawyers appointed by the Texas Supreme Court, overwhelmingly uphold those decisions. Reversals like that of Moran’s complaint happened less than 7% of the time last year, according to the bar’s annual report.

See here, here, here, and here for the background on Paxton’s lawsuit, which you may recall was an effort by Texas and several other states to get SCOTUS to overturn the election result in four Biden-won states because the plaintiffs didn’t approve of their election laws. One reason why we can credibly claim that this lawsuit was not only without merit but that the lawyers who were filing it knew that it was without merit was that they would scream bloody murder if another state tried to meddle in their own jurisdictions. Following these (dangerous and seditious) legal shenanigans, one national group called for state bars to take action against the instigators. I don’t know if this filing was related to that, but it’s not hard to connect the dots.

Now whether anything comes of this, we don’t know. As the story notes, the odds against the complainants prevailing are slim. Still, it’s another front on which Paxton must battle to save his sorry ass, and I have no doubt that his response brief will provide some content of interest. I fervently hope that one witness who gets called is former Solicitor General Kyle Hawkins, who notably declined to argue Paxton’s filing before SCOTUS, which is what someone in his role would normally do. We deserve to know what he thought of all this. A ruling is likely months away, which may be just in time for the 2022 elections to be getting into full swing. Reform Austin has more.

Can Ken Paxton be sanctioned for his seditious lawsuit?

One group is going to try. I wish them luck.

Felons for autocracy!

A national lawyers group on Monday called for professional licensing bodies to investigate what it called a “breach of ethical rules” by Texas Attorney General Ken Paxton and 17 of his counterparts in red states who sued in the Supreme Court last week in a vain attempt to overturn President-elect Joe Biden’s win in four states in the Nov. 3 presidential election.

Lawyers Defending American Democracy, a nonpartisan group that says it has the support of 5,000 lawyers across the country, said in a statement that Paxton and his fellow Republican state attorneys general filed an “abusive lawsuit” that pushed groundless theories that erode confidence in vital institutions.

“The historically unprecedented attack on our democracy needs to be met by historically unprecedented state bar investigations,” said the group.

It called for the state bar of Texas, and its lawyer-licensing counterparts in other states, to investigate unprofessional conduct by not only the state attorneys general but any lawyers among the 126 GOP members of Congress who supported the suit.

“We call on state licensing authorities to promptly investigate the breach of ethical rules by these public officials and all lawyers participating in the filing of this Supreme Court petition,” the group said.

“They must not shrink from applying established ethical rules to discipline those officials.”

See here for the background, and here for the statement. I completely agree, and there were calls for sanctions a few weeks ago against Trump’s lawyers for their obviously dishonest filings. The case for bringing sanctions against Paxton as well is based on the American Bar Association’s Model Rules of Professional Conduct, which are adapted in some form in every state, which states that a lawyer shall not bring a suit “unless there is a basis in law and fact for doing so that is not frivolous.” But to even get to the State Bar of Texas with your complaint, first you need someone to file it, and then you have a difficult task getting them to agree with you.

“If history is any guide, it’s extremely unlikely that any of these lawyers are going to face disciplinary sanctions,” says Deborah Rhode, an ethics scholar at Stanford Law School and another co-author of Legal Ethics. “The bar is just, historically, extremely reluctant to take on anything that isn’t a clear, easily provable violation of disciplinary rules, and that has any kind of political overtones.” Moreover, she notes that bar disciplinary processes are underfunded and overworked. This issue came up in multiple conversations with experts: a lack of funding, expertise, and political will to investigate established or high-profile lawyers. “I think if you had a more robust disciplinary process with the likelihood that there would be professional consequences, that would be significant, that would be a deterrent,” she says. “But we’re a long way from that process.”

“This has been a persistent complaint that a lot of people in the legal ethics world have made about our discipline systems for years, which is that they don’t work that well,” says Luban. Most bar complaints do not lead to public sanctions, and that’s particularly true for the well-connected. It’s easier for underfunded committees to sanction solo practitioners, but they leave the big fish largely untouched.

Much as I’d like to see Ken Paxton suffer some professional consequences for his anti-American actions, the best we’re likely to get is to vote his sorry ass out of office. And to root for the various prosecutors and plaintiffs lining up against him. No one ever said life was fair.