On appeal, sure they could. It all depends on a panel of judges on the 6th Circuit of the U.S. Court of Appeals.
Last week, this site commented on the sanctions levied by federal Judge Linda Parker in King, et al v Whitmer, et al, the most prominent challenge in Michigan to the 2020 presidential election. These sanctions involved substantial financial penalties and possible disbarment against three Michigan lawyers — Scott Hagerstrom of Lansing, Stefanie Lynn Junttila of Detroit, and Gregory Rohl of Novi — who supported former President Donald Trump’s complaints that the 2020 election was stolen from him.
This trio of Michigan attorneys were on a “hit list” that is part of a national effort called Project 65, masterminded by attack dog journalist David Brock. According to Axios magazine, Project 65 is “A dark money group with ties to Democratic Party heavyweights (who) will spend millions this year to try to disbar more than 100 lawyers who worked on Donald Trump’s post-election lawsuits . . .” Importantly, David Brock is advising and perhaps directing this Group, which derives its name, “65 Project,” from the number of lawsuits challenging the 2020 election results. Brock apparently told Axios in an interview that the idea is “not only to bring the grievances in the bar complaints, but to shame them and make them toxic in their communities and in their firms.”
And who is David Brock? Brock is a serial smear artist, first for the left, then for the right, and now for the left again. The Nation has described Brock as a “conservative journalistic assassin turned progressive empire-builder.” The National Review described him as a “right-wing assassin turned left-wing assassin.” Politico called him a “former right-wing journalist turned pro-Clinton crusader.” In other words, Brock started as a fairly conventional liberal, then veered hard right into the conservative orbit, then turned sharply left as he became an apologist for Hillary Clinton.
There are several things that stand out about Brock’s career following his creation of Media Matters (MM):
But even without Brock or Project 65, there are those who believe that what the three Michigan attorneys did merited Judge Parker’s sanctions against them.
First and foremost, there is Rule 3.3 (a) in the Michigan Rules of Professional Conduct: Rule 3.3 (a) “A lawyer shall not knowingly make a false statement of material fact or Law to a tribunal.” Furthermore, Rule 4.1 states that “In the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or Law to a third person.”
That’s unlikely to deter attorneys representing “The Michigan Three.” They argue that sanctions should punish violators of the Michigan Rules (which may or may not be appropriate in the King case) only for past conduct, while disbarment (urged for The Three by Michigan’s top three state elected officials, all attorneys themselves) is prospective in effect. The disbarment campaign launched by Brock and supported by Gov. Gretchen Whitmer, Attorney General Dana Nessel, and Secretary of State Jocelyn Benson is clearly designed to discourage lawyers generally from taking on clients like Donald Trump. The idea is to shame them and curtail their ability to make a living. Brock is making an overtly political and highly partisan case dressed up as a legal procedure, they claim. Equally important, disbarment deprives any prospective client — whether that client is a solitary individual on a fixed income or a publicly traded corporation with billions in assets — from being able to select the lawyer of that individual’s or that entity’s choice. It is a double whammy and therefore doubly reprehensible, they contend.
Still, those outraged by the Michigan pro-Trump attorneys contend that, for decades, lawyers who are unethical have been subject to prospective discipline, including suspension and disbarment on the grounds that it is a way of imposing accountability for past conduct. Representing unpopular clients, whether left or right, whether Clarence Darrow or Donald Trump, is one thing, but presenting cases to a judge supported only by evidence you know or should know is false, is an entirely different matter and can justify sanctions, they argue. Of course, the key word here is “should” — who decides what a lawyer should know or doesn’t know, and how he or she uses it?
At bottom, whether any of “The Michigan Three” are actually disbarred depends on the individual case before the 6th Circuit. The standard for disbarment for what an attorney presents to a judge is high, so Parker’s edict may be unlikely to survive on appeal.