When I launched this site back in October I intended it to be a site for discussion of legal ethics. I mean, it’s right there in the title (sort of; perhaps I should put '“getting ‘ethicking' added to the dictionary” on my bucket list). Disciplinary decisions, new rules, general nerdery. Some current events but “it’s not about politics, and it’s not going to be about politics,” or so I told my employer when making the pitch.

I suppose I should have seen this coming, but it’s nearly impossible these days to dwell in the ethics world and not talk about politics, what with this big honkin’ impeachment sucking all of the air out of the room. Impeachment means there’s a lot of lawyering going on, and this particular impeachment has a lot of fodder for blogs like this one because, while there is a lot of good lawyering, more relevant to our purposes here there is a lot of really WTF lawyering (technical term). I’m sure it will be an active topic of discussion at the APRL conference next month, as it has been at the lunch table at my office and even at home with my family.

This particular impeachment is also the first to happen in the texting and social media age, which means that I get questions in real time, as I suspect many lawyers do. The biggest one so far has been, “can lawyers really lie on the floor of the Senate and get away with it?” That came in, in various forms, from a few of my friends, when President Trump’s lawyer Pat Cipollone pretty brazenly stated that Republicans weren’t allowed to participate in House depositions in a secure room. This is almost certainly a lie rather than a misstatement or misapprehension; I can’t imagine a scenario in which a lawyer with a three-decade career and a reputation for being “well-prepared and even-keeled” would simply not know that 47 Republicans who served on the appropriate committees had the right to attend these depositions, and many did attend, and all of this got a lot of press coverage back in October. Politifact gave Cipollone’s statement a “false” rating (which makes me wonder exactly what it would have taken to get a “pants on fire” rating but that’s neither here nor there).

Anyway, I’ve gotten questions about whether Cipollone can or should be disbarred. Elected officials and scholars are also asking those same questions and making that demand on social media.

So, to answer, a bit—I am not sure where Cipollone is barred, but ABA Model Rule 3.3 prohibits lawyers from making any false statements to a “tribunal,” and requires us to correct false statements of material fact if they do occur. Rule 1.0(m) defines a tribunal to include a legislative body, if it’s acting in an adjudicative capacity. And, even if somehow the Senate sitting in impeachment doesn’t qualify as a “tribunal,” we can point to good old 8.4(c), which prohibits conduct involving dishonesty or misrepresentation. I’m currently involved in a debate on Twitter as to whether the Speech or Debate Clause would immunize Trump’s lawyers here; I don’t think it does, but I’m open to argument on that.

That said, I do think Cipollone’s got some problems here.* He’s not the only one in this universe, but he’s the most recent one.

*(No, I don’t think 8.3’s requirement to report professional misconduct applies to lawyers watching another lawyer who they’ve never met lie on TV. These are rules of reason.)

That being said, should he be or will he be “disbarred?” People like to throw that word around. But disbarment—that is, revocation of a law license—is relatively rare. There is no permanent disbarment in Wisconsin; revocation still means a lawyer can petition for reinstatement after five years though that’s often uphill. There are something like 15,000 licensed lawyers in Wisconsin and during the last fiscal year, one was revoked by consent and another was revoked by the Supreme Court (see the Office of Lawyer Regulation’s Annual Report p. 9.) That’s it. I know many other states are stricter, but still. Suspensions and reprimands are far more common, and 3.3 violations that result in public discipline generally fall into those categories.

(Ironically, the exception may be lawyers in high office—Bill Clinton, Richard Nixon, and Spiro Agnew were all disbarred by at least one court.)

Perhaps this is my defense hat showing, but I’m always reluctant to tell anyone (even a friend messaging me on Facebook) that a lawyer I only know about from news reports should be or will be disbarred, or suspended for that matter. (Though, in this case, because I am tired and cynical but also because “This Blog Isn’t About Politics” I probably shouldn’t throw up my hands and say “it doesn’t matter, nothing’s going to happen regardless” either.)

More generally, due process, at the very least, suggests the analysis should be given more nuance, and we shouldn’t immediately jump to a harsh sanction due to the notoriety of the proceedings or whether we like the client or the cause. Is a lie worth more in a disciplinary context when it’s said in an impeachment trial that millions are watching and generations will study, versus in a summary judgment hearing about a contract dispute? I suppose that’s a topic for another day.