theepochtimes.com
Conservative Lawyers Reveal Retaliation They Faced Over Politics
Jacob Burg
The State Bar Court of California ruled in late March that John Eastman should be disbarred for helping then-President Donald Trump challenge the outcome of the 2020 election.
Mr. Eastman requested that a judge, before the California Supreme Court reviews the case, pause the order prohibiting him from practicing law so he could fund his defense in the criminal case brought against President Trump and his attorneys in Georgia.
Jeffrey Clark, who also tried to help President Trump, is facing a similar disbarment hearing in Washington. The focal point is a “proof of concept” letter he drafted for President Trump in December 2020 that would have asked top Georgia officials to investigate alleged voter fraud in the state.
Mr. Clark and Mr. Eastman are the latest attorneys to face backlash from the bar over their actions. Former New York City Mayor Rudy Giuliani’s license was suspended in June 2021 after a court ruled that he made demonstrably false statements while challenging the election results.
Sidney Powell, Kenneth Chesebro, and Jenna Ellis have all been sentenced in the Georgia case after making plea deals. Lawrence Joseph, Julia Haller, and Brandon Johnson, who worked on President Trump’s post-election challenges in battleground states, are also facing disciplinary proceedings in Washington.
Other conservative attorneys have faced their own forms of professional repercussions and threats.
Christopher Crowley, a former prosecutor from Fort Myers, Florida, could be suspended by the Florida Bar after an ethics complaint was filed in 2020 for political statements he made about an opponent in a Republican primary for a state attorney election.
William Brown was fired from a prominent law firm in New Jersey for making political remarks about the glorification of violence in hip hop and militant forms of Islam in a December 2023 LinkedIn post.
James Bopp Jr. was subject to an ethics complaint after he asked a judge to recuse himself while representing Michael Gableman in an investigation into Wisconsin’s election commission.
Patrick Leduc was harassed and criticized for representing one of the first defendants to go before a judge in the indictments related to the Jan. 6, 2021, Capitol breach.
And Timothy Parlatore faced public outcry for briefly representing President Trump in his Florida classified documents case and the one brought by Department of Justice Special Counsel Jack Smith in Washington.
These attorneys have expressed to The Epoch Times a fear that legal proceedings and the legal profession as a whole are increasingly used to pursue lawyers on the right more than lawyers on the left.
Ty Clevenger, a civil rights attorney from Texas, said the alleged politicization of disciplinary actions against lawyers sends the wrong signals.
“The message that’s going out to lawyers is that if you represent the wrong clients, you can pay for it personally,” he told The Epoch Times. “And so it’s not just lawyers who are being intimidated. It’s all the defendants or potential defendants out there who are going to have or are having more difficulty getting lawyers because lawyers don’t want to have to deal with repercussions.”
John Malcolm, a senior legal fellow with The Heritage Foundation, agreed.
“There is no question that there is a political bias in the legal profession that skews dramatically to the left, and it is getting worse,” he told The Epoch Times.
Free Speech and Bar Rules
Indiana University law professor Margaret Tarkington told The Epoch Times that two model rules from the American Bar Association (ABA) have the potential to disproportionately affect conservative attorneys.
Rule 8.2 says, “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.”
Ms. Tarkington said that although she believes that the rule as it is written seemingly complies with the U.S. Constitution, “the way 8.2 is applied by most states in the United States is absolutely unconstitutional and violates lawyers’ First Amendment rights.”
She said the rule usually targets comments about judges, including judicial candidates, as a means of preserving the “perception of integrity” within the judiciary as a whole.
However, Ms. Tarkington said she believes that it shields judges from “all effective criticism,” including from the very people who know what judges should and shouldn’t be doing: lawyers.
The Florida Bar’s version of this rule was applied to Mr. Crowley when he ran in 2018 for 20th Judicial Circuit state attorney against Amira Fox.
The Florida Bar stated that he “publicly disparaged his opponent through various political campaign materials, advertisements, and social media postings” and violated other rules, including promoting an unlawful raffle lottery, which Mr. Crowley said was settled with a diversion agreement.
He criticized Ms. Fox’s conviction record, called her “corrupt” and “swampy,” and referenced her uncle’s association with the Palestine Liberation Organization (PLO). He shared an article on Facebook that referred to Ms. Fox as a “Muslim candidate,” and the Florida Bar stated that he was attacking her religion.
However, Mr. Crowley said he never knew, nor cared, about Ms. Fox’s religion and was merely sharing an article that he didn’t author that discussed her family’s relationship with the PLO, which he sees as a terrorist group.
“So basically, and factually, the Florida Bar is regulating political speech,” he told The Epoch Times.
Mr. Crowley said that, in calling Ms. Fox “corrupt,” he cited “facts, figures, and news articles.”
“Now the Florida Bar is saying I cannot do that,” he said.
Ms. Tarkington said rule 8.2 is usually applied to judicial candidates and not state attorney races.
“That is an absolutely bizarre application of that. That is not commonly done,” she said of Mr. Crowley’s Florida Bar ethics complaint.
Mr. Clevenger also took issue with the way ABA rules were applied in the ethics complaints against Mr. Crowley.
“If a lawyer cannot speak frankly and freely during a political campaign, then we just don’t have First Amendment rights anymore,” Mr. Clevenger said.
The ABA creates rule guidelines for state bar associations throughout the country but does not directly “license or discipline lawyers,” an ABA spokesperson told The Epoch Times.
“Each state licenses lawyers and investigates complaints of ethical violations by lawyers licensed in their state,” the spokesperson said. “Usually, it’s the state supreme court or state bar—under the authority of the state supreme court—that does that.”
Still, when state bar associations discipline lawyers such as Mr. Crowley and Mr. Eastman, they refer to rules enacted by the ABA, including 8.2.
There’s also ABA rule 8.4(g), which states that a lawyer shall not “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”
This rule is not “narrowly tailored,” Ms. Tarkington said, and it covers comments that could be considered “derogatory or demeaning on a very long list of bases.”
“The problem is a number of conservative viewpoints, whether it be on abortion or on immigration or on traditional marriage, are things that because of the way [8.4(g) is] written, they would have a greater tendency to be problematic,” she said.
Ms. Tarkington said the way the rule is written also creates the “potential for greater restriction and greater discipline of conservative lawyers.”
The Epoch Times contacted the Florida Bar but didn’t receive a reply before publication.
Election Litigation
Some of the highest-profile disciplinary proceedings against conservative attorneys in recent years have been against the group that helped President Trump dispute the 2020 election results.
Beyond Mr. Eastman and Mr. Clark, the District of Columbia Bar Discipline Committee recommended disbarring Rudy Giuliani in July 2023, and the final decision will be made by the District of Columbia Court of Appeals.
Sidney Powell and her lawyer, Lawrence Joseph, are also facing various repercussions from advancing claims and lawsuits related to the 2020 election results. Ms. Powell was sued by voting machine companies over accusations she made that the 2020 election was rigged against President Trump and was also indicted in the Georgia RICO case along with the former president, Mr. Eastman, Mr. Clark, Mr. Giuliani, lawyer Kenneth Cheseboro, lawyer Jenna Ellis, former White House Chief of Staff Mark Meadows, and others.
Mr. Joseph, like Mr. Clark, received disciplinary charges from the District of Columbia Bar’s Office of Disciplinary Counsel earlier this year.
“[The rules] need to be clarified as to the obligations for when you’re advising or assisting government,” Ms. Tarkington said.
She argued that the rules used to discipline these lawyers are “really broad and amorphous” and that it’s “really hard to know in advance whether whatever you’re doing would violate them.”
Ms. Tarkington said that although she takes issue with those who allegedly helped submit a second slate of electors, she doesn’t believe that disciplinary proceedings should be brought against everyone who represented President Trump or “everyone who filed litigation on his behalf” to challenge the 2020 election results.
The former president had a First Amendment right to challenge the election in court, she said, and “his lawyers had a corresponding First Amendment right to petition on his behalf to associate with him.”
