In February 2021, Patrick Malone brought ethics complaints with the DC Bar Disciplinary Counsel, the agency in charge of regulating attorney misconduct among the 100,000 members of the DC Bar, against three attorneys who actively participated in lawsuits trying to overturn the 2020 Presidential election.
Malone’s complaints focused on two sets of litigation:
* A case called Gohmert v. Pence, which asked a federal judge in Texas to declare that Vice President Pence had ” exclusive authority and sole discretion” to choose between what were alleged to be competing slates of electors from what the complaint asserted were “contested states,” and thus to decide on his own the winner of the presidential election or throw the contest into the House of Representatives where each state would have a single vote.
* Four cases filed in federal courts in Arizona, Georgia, Michigan, and Wisconsin, together called the “Kraken” cases, which alleged a vast international conspiracy had rigged voting machines to switch votes from Trump to Biden and thus fraudulently steal the election for the Democratic candidate.
Malone’s ethics complaints dealt with the role of attorneys licensed in the District of Columbia who brought these cases, which Malone said had been shown to be completely frivolous and false. It is an ethical violation of the Rules of Professional Conduct to pursue a legal case that is frivolous. That is especially true when the lawsuits undermine the legal system with false and wild accusations that have no support in reality.
Read the entire documents for the details of Malone’s complaints.
Gohmert ethics complaint:
The lawsuit sought to overturn the votes of certified presidential electors by a series of false statements of fact and ludicrous arguments of law. Among other errors of important facts, the complaint asserted that on December 14, 2020, when the electors met in each state, “the State of Arizona (and several others) have appointed two competing slates of electors.” See Exhibit 1, Complaint ¶ 4.
In fact, no state certified competing slates of electors. The complaint falsely asserted that in Arizona, the electors who joined Mr. Gohmert as plaintiffs in the case “have cast Arizona’s electoral votes for President Donald J. Trump on December 14, 2020, at the Arizona State Capitol with the permission and endorsement of the Arizona Legislature, i.e., at the time, place, and manner required under Arizona state law and the Electoral Count Act.” (Emphasis added) Complaint ¶ 5. See also Complaint ¶ 20, which asserted that these electors had met and voted for Trump on December 14, 2020 “with the knowledge and permission of the Republican-majority Arizona Legislature.” The Arizona legislature did no such thing. It was not even in session.…
In summary the complaint presented by Attorneys Haller, Johnson, and Joseph had the wrong plaintiffs and the wrong defendant, was filed in the wrong venue, asserted as true key facts that were false, used phony evidence, purported to have newly discovered a fatal flaw in a 133-year-old statute on the eve of its every-fourth-year exercise, sought to overturn a procedure used without dispute in all presidential elections for the past century and longer, and argued that the vice president as President of the Senate could pick his own winner of the presidential contest with his own unchecked discretion. It was filed and pursued as a political stunt, not as a serious lawsuit. Yet it had grave consequences, as a mob of rioters proved days later when they roamed the halls of the U.S. Capitol, shouting for the hanging of Mike Pence for failing to follow what this complaint said he could and should do.
If these attorneys believed, based upon some investigation reasonable under the circumstances, that they had evidentiary support, then they were entitled to present these lawsuits no matter how extreme their allegations of a rigged or stolen election were. As noted above, no reasonable attorney could have believed in the truth of such assertions given the complete lack of evidence and their extreme nature.
But they presented these lawsuits anyway, and as noted above, pursued them to the bitter end. So the question is why? What could have been the “proper purpose” required by Rule 11? Certainly an improper purpose comes readily to mind, and it underscores the appropriateness of this ethics complaint being pursued vigorously here in the District of Columbia.
I believe that investigation by D.C. Bar Disciplinary Counsel will determine that the purpose of these cases was to subvert the legitimate constitutional duty of the United States Congress, sitting in the District of Columbia, to fulfill its constitutional obligation to declare the winner of the presidential election. That was a function carried out by Congress on January 6, 2021, only after an hours’ long delay caused by the rioters who invaded the Capitol. And as pointed out in this complaint and my accompanying complaint about the Gohmert case, a straight line runs from these lawsuits to the rioters’ actions.