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A License to Lie

Susan Estrich on

Where does a lawyer draw the line between zealous advocacy of a client's cause and using his standing as a lawyer as a license to lie? A California State Bar judge ruled this week that former Chapman Law School Dean John Eastman crossed that line in his representation of Donald Trump's efforts to invalidate the 2020 election.

"It is true that an attorney has a duty to engage in zealous advocacy on behalf of a client," Bar judge Yvette Roland wrote in a 128-page opinion. "However, Eastman's inaccurate assertions were lies that cannot be justified as zealous advocacy."

The case, she reasoned, "boils down to an analysis of whether or not Eastman ... acted dishonestly."

Anything that takes 128 pages to explain can't really be that simple. Do lawyers act dishonestly in representing guilty defendants? Yes and no. Does every lawyer who agreed with Trump's outrageous claims that the election was rigged, or advised him to contest it, deserve to be disbarred? Obviously not.

Eastman was one of those who crafted the strategy that Trump pursued. He stood on the Ellipse with Rudolph Giuliani and told the crowd that stormed the Capitol that the election was rigged. Yet the only count he was not found liable for was one of "moral turpitude" because she concluded that there was no proof that Eastman's remarks at the Ellipse provoked the crowd to attack the Capitol, as the bar attorneys had alleged.

For Roland, what was critical was that Eastman had no proof. In an email he sent to another lawyer advising Trump on Nov. 29, 2020, Eastman wrote:

"It would be nice to have actually hard documented evidence of the fraud in the areas to which the analyses pointed." Instead, he relied on experts who weren't really experts, and numbers -- like the number of felons who voted in Georgia -- that turned out to be inaccurate. In crafting the strategy for Mike Pence to refuse to certify the results, he opted not to test its legality in court in advance. "The risk of getting a court ruling that Pence has no authority to reject the Biden-certified ballots," Eastman wrote, was "very high." It was better for Pence "just to act boldly and be challenged." Better to beg for forgiveness later than to ask for permission in advance.

 

That's not a strategy that John Eastman invented. What makes Eastman's case different -- what makes his conduct culpable -- are the stakes involved. The truth he played fast and loose with was the democratic process. He sought to undermine the very core of our democracy. His client was the president of the United States. His zealous advocacy was in support of undermining the presidential election. Eastman has been indicted criminally. This is not what lawyers do, or what their license invites them to do.

Gregory Jacob, Pence's former lawyer, testified for the bar at Eastman's trial. He said that Eastman approached him and argued that Pence had the power to unilaterally throw out electoral votes in contested states where fraud was alleged, even though no fraud had been established in any court where an action was filed. Even Eastman's own witness, Berkeley professor John Yoo, acknowledged that Joe Biden had won the White House "fair and square" and that Pence had "unassailable grounds" in refusing to reject the challenged electoral votes. Jacobs went one step further, accusing Eastman of serving as "a serpent in the ear of the president of the United States."

It's tempting to tell a client what they want to hear. But ethical lawyers can't always do that. Speaking truth to power may not win you points with some clients -- and Donald Trump is surely one of them -- but when the client is that powerful, and the stakes are literally existential, the obligation to be truthful must be paramount. Eastman turned his back on the truth, trafficked in lies and came as close as any lawyer has to undermining our democracy. And for all that, even now, he showed no remorse. Like his former boss, he portrays himself as a victim, and told the Los Angeles Times he has no regrets. "Absolutely not," he said.

"His lack of insight into the wrongfulness of his misconduct is deeply troubling," the judge wrote. That is the least of it and further proof, if it were needed, of his culpability.

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To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.


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