The Counsel for Discipline (hereinafter “the Counsel”), an office under the auspices of the Nebraska Supreme Court, is charged with investigating complaints of ethical violations by lawyers. Recent actions by two public attorneys, Attorney General Doug Peterson and Secretary of State Bob Evnen, attracted several complaints.
As a practicing attorney for 45 years, now retired, I am dumbfounded at, and ashamed of, the role attorneys played in enabling the conduct of Trump and others promoting the “big lie” that the election was stolen from Trump. Such action by attorneys clearly motivated the “stop the steal” mob’s invasion of our Capitol, putting our elected representatives and many others in harm’s way. Indeed, these events threatened the foundation of our democracy.
In December, Peterson, with Evnen’s support, joined a brief in a U.S. Supreme court case, Texas v. Pennsylvania et al. seeking to invalidate the presidential election vote in Pennsylvania, Georgia, Michigan and Wisconsin absent evidence sufficient to overturn an election and without legal authority by which a state can sue another, attacking its elections.
Then-State Sen. Ernie Chambers of Omaha filed a complaint with the Counsel, alleging Peterson’s and Evnen’s actions were frivolous and brought discredit upon the profession, violations of the Nebraska Rules of Professional Conduct. The World-Herald reported the complaint, and several of us submitted a supportive letter to the Counsel. Several other complaints were filed, and all complaints were dismissed by letter from the Counsel. The dismissals prohibited any appeal. I was struck by the paucity of specific support cited in the dismissal letter(s).
Chambers’ complaint cited the broad public reaction including, as stated by the Lincoln Journal Star: “Nebraskans should be embarrassed that Attorney General Peterson ... supported such a ridiculous claim...[and] Nebraska citizens should be incensed at and embarrassed by the actions their elected officials took.” And The World-Herald stated the Texas lawsuit “was a contrived fallacious legal argument underpinned by wild-eyed theories. ... Without merit or any necessity whatsoever, they [Peterson supported by Evnen] signed all Nebraskans on to that. ... It was shameful.”
It was the Counsel’s job to assess whether the facts as alleged support the claims based on existing law or a logical extension thereof. Yet, the most relevant questions were not answered in the dismissal letters. For example: What legal authority leads to the conclusion their claims were not frivolous? What case supports the proposition that one state can bring an action against another state to attack the election process of that state? What case supports a remedy that nullifies the votes of millions of voters? Which of the 55-60 cases thrown out by the courts and affirmed on appeal in numerous states (including the four states in the Texas lawsuit) was wrongly decided?
These central questions and others went unanswered. My reading of the cases answers each of these questions with a resounding “None.” Others agree: The State of Georgia’s response brief stated Texas’ claims and remedies “are impossible to ground in legal principles and unmanageable. This court has never allowed one state to co-opt the legislative authority of another state.”
A group of Republican leaders, e.g., John Danforth, Christine Todd Whitman, stated Texas’ assertions were “contrary to 230 years of history” and nothing but “jiggery-pokery.”
When attorneys, particularly public attorneys even when not participating in litigation, engage in frivolous and damaging conduct, there needs to be a meaningful sanction to deter such conduct in the future. The process Chambers and others used involving stakes so high and actions so destructive, was unable to meet the challenge.
Recently Sherrilyn Ifill, attorney and president of the NAACP Legal Defense and Educational Fund, wrote in the New York Times:
“The Model Rules of Professional Conduct bar lawyers from abusing the legal process. And yet for weeks on end a cohort of lawyers — including attorneys general from 17 states who supported the Texas lawsuit seeking to delay the election certification — did just that on the president’s behalf following his electoral loss in November.”
Ifill then states that dismissal of cases was “obviously” not sufficient to deter lawyers to refrain from such “egregious conduct” that “led to the violent attack on the Capitol. ... Lawyers must face professional censure for such conduct.”
The Nebraska process failed, and lawyers have been given license to do it again.
Bob Broom is a longtime Omaha attorney, now retired.
When attorneys ... engage in frivolous and damaging conduct, there needs to be a meaningful sanction to deter such conduct in the future.