The Case for Proactive Bar Sanctions to Combat the Next Big Lie

• Published in: Texas law review Vol. 102; no. 6; pp. 1331 - 1363
• Main Author: Libby, Sam
• Format: Journal Article
• Language: English
• Published: Austin University of Texas, Austin, School of Law Publications, Inc 01.05.2024
• Subjects: Attorneys; Bar associations; Biden, Joseph R Jr; Canons; Criminal liability; Discipline; Election results; Elections; Ethics; Federal Rules of Civil Procedure; Judicial process; Legal professions; Presidential elections; Presidents; Public opinion; Sanctions; Trump, Donald J; Voter fraud
• ISSN: 0040-4411; 1942-857X

Some say the job of a lawyer is to lie on behalf of a client. But longstanding ethical canons are clear: lawyers may not promote false statements of fact or law while representing their clients. This basic tenet of professional responsibility helps to preserve the integrity of the legal profession and ensure public confidence in the administration of justice. And if lawyers violate their ethical duties, they are subject to disciplinary proceedings. The 2020 election tested this system. Attorneys for former President Donald J. Trump made a series of false statements to the public and in court papers that President Joe Biden won the election because of fraud. This narrative became the "Big Lie," and it continues to percolate. Although some lawyers eventually faced professional discipline, disciplinary proceedings took months, and sometimes years, to initiate. During that time, millions of Americans came to believe these falsehoods. To stop the next big lie in its tracks, this Note argues for a more proactive approach to lawyer regulation. Well-established ethical rules enable bar authorities to begin investigations as soon as lawyers knowingly make materially false statements to third parties or the public. Therefore, this Note argues, not only can bar authorities act, but they must proceed swiftly in cases where false statements have spillover effects beyond the parties to an individual case or transaction. Doing so would erect a wall between the legal profession as a whole and falsehoods promoted by its members, sending a strong deterrent message to would-be liars and maintaining the integrity of the legal profession. Moreover, more aggressive action by ethics counsel would survive First Amendment scrutiny and promote truth-telling in all contexts, not just in political or election cases.