Judge Steven Platt: Lawyers, the Judiciary, and the Truth

By Steven I. Platt

The writer is a Senior Circuit Court Judge.

In a world where lawyers think their law degrees and Bar membership give them a license to spin conspiracy theories to support claims of a “stolen election” and justify participation in an attempted insurrection, judges must insist and if necessary, enforce the ethical obligation of every lawyer to comply with the applicable “Attorney’s Rules of Professional Conduct.” Every state, as well as the federal courts, have them.

This is the only way judges can consistently execute their core judicial function, which is to distinguish between fact and fiction in a courtroom.

The Preamble to our own Maryland Attorneys’ Rules of Professional Conduct recognizes this reality by stating:

An attorney, as a member of the legal profession is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice.

The Preamble also notes that “an attorney is also guided by personal conscience and the approbation of professional peers.”

For those lawyers whose consciences are underdeveloped and who do not care about the approbation of their professional peers, the rules are most important. Those Maryland rules read in pertinent part as follows:

Rule 19-303.1 – Meritorious Claims and Contentions

An attorney shall not bring or defend a proceeding or assist or controvert an issue unless there is a basis for doing so that is not frivolous…

Rule 19-303.3 – Candor Toward Tribunal

(a) An attorney shall not knowingly make a false statement of fact of law to a Tribunal or fail to correct a false statement of material fact or law made to the Tribunal by the attorney…

Rule 19-304.1 – Truthfulness In Statements to Others

In the course of representing a client, an attorney shall not knowingly make a false statement of material fact to a third person…

NOTE: “Third Persons” include the general public who listen and watch cable news, the internet, and podcasts.

It is the alleged failure of counsel for the surrogates of former President Trump or his sympathizers to comply with these Rules of Professional Conduct that prompted federal and state judges, and in some states, the Bar Associations of those states, to intervene and seek regulatory and/or professional disciplinary sanctions against some of these attorneys and/or to confront them in open court and on the record with their conduct.

Those actions include, but are certainly not limited to, the suspension of Rudolph W. Giuliani, Esq., from the practice of law in the state of New York and the District of Columbia. There is also pending action by judges in Colorado and Michigan to require counsel in civil cases in those states to pay the attorneys’ fees of all parties who were sued in the current opinion of these courts without any legal or evidentiary basis for doing so. Apparently, the courts in those cases specifically requested counsel to articulate or produce the evidence which supported their claims. These inquiries were responded to in effect by statements to the effect of “We’re working on it.”

The seriousness of these violations of not just norms but Rules goes to the very basic functioning of our judicial system and its ability to distinguish between evidence and argument, fact and fiction, conspiracy theories and reality-based judgements. The gravity of these violations was articulated by the Supreme Court of the state of New York, Appellate Division in the Giuliani case as follows:

“The risk that respondent will continue to engage in future misconduct while this disciplinary proceeding is pending, is further borne out by his past, persistent and pervasive demonstration of these false statements in the media. This is not a situation where the uncontroverted misconduct consisted of only a few isolated incidents. Rather, each of the false statements identified and analyzed herein were made multiple times on multiple platforms, reaching countless members of the public. They continued after this motion was brought, and despite respondent facing imminent suspension from the practice of law.

“The seriousness of respondent’s uncontroverted misconduct cannot be overstated. This country is being torn apart by continued attacks on the legitimacy of the 2020 election and of our current president, Joseph R. Biden. The hallmark of our democracy is predicated on free and fair elections. False statements intended to foment a loss of confidence in our elections and resulting loss of confidence in government generally damage the proper function of a free society. When those false statements are made by an attorney, it also erodes the public’s confidence in the integrity of attorneys admitted to our bar and damages the profession’s role as a crucial source of reliable information (Matter of Nearing, 16 AD2d at 516). It tarnishes the reputation of the entire legal profession and its mandate to act as a trusted and essential part of the machinery of justice (Ohralik v Ohio State Bar Assn, 436 US at 447). Where, as here, the false statements are being made by respondent, acting with the authority of being an attorney, and using his large megaphone, the harm is magnified. One only has to look at the ongoing present public discord over the 2020 election, which erupted into violence, insurrection and death on January 6, 2021, at the U.S. Capitol, to understand the extent of the damage that can be done when the public is misled by false information about the election.”

Claims of voting machine company conspiracies, voter fraud, and destruction of ballots were brought in 61 courts, all of which dismissed every single one of these claims. Interestingly, some of the lawyers for the surrogate plaintiffs, including Rudolph Giuliani, in a Pennsylvania Federal Court in front of a judge that Donald Trump appointed, shied away from alleging voter fraud — probably out of concern even then of violating Pennsylvania’s rule against failing to be candid with the court. Notwithstanding that reticence by a normally unrestrained Rudy Giuliani, the Trump-appointed Republican judge commented to counsel, words to the effect, “You have no evidence.”

This writer practiced law for almost 11 years before going on the bench. I understand that pleasing your client can be difficult, particularly if he or she is not reality based. That includes the former president of the United States. That said, sacrificing your professional reputation and your integrity, not to mention your duty to your country, to placate him and thereby stay relevant, should not be a close call. If it is — there should be consequences. In this case there already have been. There should be more!

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