How the Government Should Deal with Lawyers’ Alleged Bad Behavior: Substance and Procedure
Last week, I posted an excerpt of Paul Clement’s arguments as to why the Executive Order targeting the WilmerHale law firm violates the Constitution, and said they struck me as quite correct. (The analysis is similar, I think, with regard to the other Executive Orders targeting law firms.) In response, a reader asked:
With all the hub-bub now around Big Law firms being attacked, it might be nice to see a piece harkening back to the way numerous lawyers and law firms were attacked by the left back when we were representing Trump in 2016 and 2020 and how the profession didn’t so much as yawn in our direction about it.
For example, in a WSJ article on March 9, 2025 (“Fear of Trump Has Elite Law Firms in Retreat”), Rep. Jamie Raskin’s (D., Md.) was fired up that the Trump administration was singling out law firms that solicited the Steele dossier and which vigorously attacked Trump’s own lawyers in 2020. Raskin was a Constitutional law professor before his election to Congress. He was utterly silent when his then Congressional colleague, Bill Pascrell, Jr. (D., NJ.) wrote a letter on November 20, 2020 to the Pennsylvania Disciplinary Board seeking to have [various lawyers] disbarred solely because we represented President Trump in courts across Pennsylvania on mundane election law issues not involving allegations of fraud….
It didn’t much seem to matter to anyone back then because we were mostly small firm and solo practitioners under attack. Now that its Big Law getting punched, suddenly everyone’s up in arms. Where was the rest of our profession when we were getting hit with both barrels back then?
I think this is an important question; let me offer a tentative and partial answer.
Lawyers are bound by specific professional obligations, and violating them can rightly lead to discipline. Those start with reprimands and financial sanctions, and move up to loss of one’s license and therefore one’s livelihood. Indeed, some lawyer misconduct may actually be criminal.
Just to give some examples, lawyers aren’t allowed to help their clients commit crimes (though of course they are often supposed to help their clients avoid punishment for committing crimes). Lawyers aren’t allowed to make misrepresentations to courts. Lawyers aren’t allowed to make legally frivolous arguments (though my sense is that making such frivolous arguments very rarely leads to punishment beyond the occasional financial sanction).
Now of course the existence of these disciplinary rules sometimes leads to demands that lawyers be punished for behavior that, viewed objectively, is perfectly legitimate. Disgruntled opponents sometimes make that
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