By Kent Hull
On Dec. 3, 2020, the group Lawyers Defending American Democracy issued a “Call for Bar Condemnation and Investigation of President Trump’s Campaign Lawyers for Subverting American Democracy,” which stated:
“More than 35 losses in election-related cases have made one thing painfully clear: President Trump’s barrage of litigation is a pretext for a campaign to undermine public confidence in the outcome of the 2020 election, which inevitably will subvert constitutional democracy. Sadly, the President’s primary agents and enablers in this effort are lawyers, obligated by their oath and ethical rules to uphold the rule of law. Bar Associations need to condemn this abuse and bar disciplinary authorities need to investigate it.”
I am one of the hundreds of lawyers who signed. I did so not only because of the present constitutional crisis, but for an additional individual reason: to personally honor the valiant work of the lawyers in the NAACP Legal and Education Fund Inc. (known as the “Inc. Fund”) and to mark a distinction between their achievements and the damage to our profession inflicted by these recent worthless cases.
Trump’s litigation has now apparently collapsed. Will sanctions be imposed in this series of unsuccessful cases, and if so, when? If there is delay — or no action — that will be a striking contrast to the experience of the Inc. Fund, one of our nation’s preeminent civil rights advocacy organizations. Their lawyers, who won numerous seminal lawsuits, nevertheless encountered harassment by a legal establishment devoted to protecting a segregated society.
In the 1950s, the Inc. Fund, under the leadership of Thurgood Marshall, conducted litigation throughout the South challenging racial segregation in schools and government services. The Inc. Fund won some cases immediately, while others required lengthy appeals to federal appellate courts and the Supreme Court.
Working with Marshall was an in-house staff which included Jack Greenberg, as well as Constance Baker Motley and Robert L. Carter (both of whom became federal district judges). Greenberg, who assumed leadership after Marshall’s appointment to the federal appellate bench and, soon thereafter, to the Supreme Court, eventually became a professor at Columbia Law School. He wrote an influential law school casebook on race discrimination, then became dean of Columbia College.
The founder of the project which eventually became the Inc. Fund, Charles Hamilton Houston, had been, before his untimely death in 1950, a prominent professor at Howard Law School, the training ground for generations of Black lawyers who dedicated their careers to civil rights litigation. Working with the Inc. Fund were such distinguished academics as Yale Law professors Charles L. Black Jr. and Louis H. Pollak, who, after serving as dean of the law schools at Yale and the University of Pennsylvania, became a federal district judge.
The Inc. Fund lawyers were superb practitioners who knew what they were doing. They changed the direction of American law. Those who appeared in Southern courtrooms risked death, as did local cooperating attorneys (almost always Black) who participated in the cases. The Inc. Fund lawyers might quickly get out of town on trains or planes, but the local lawyers often endured permanent hostility and continuous danger in their communities.
Against this background Southern states tried to impede operations of both the NAACP and the Inc. Fund, which was legally separate from the original sponsoring organization. An Arkansas law prohibited NAACP members from holding state jobs. Alabama’s attorney general sued to stop the NAACP from doing business in the state and obtained a state court order requiring the organization to turn over membership lists. Louisiana also attempted to stop NAACP activities in that state. In lawsuits against each state the Supreme Court ruled in favor of the NAACP, invalidating the legislation or actions taken.
The Virginia Legislature, however, took direct aim at the Inc. Fund as well as the NAACP. It passed laws prohibiting lawyers from “soliciting” clients and filing cases those individuals would not otherwise have pursued. The legislation also required production of financial reports and membership lists. In a 1963 decision, the Supreme Court invalidated the Virginia legislation because it impaired the NAACP’s exercise of free speech under the First Amendment.
Later Supreme Court cases distinguished the NAACP/Inc. Fund pro bono activities from lawyers’ obligations in fee-generating matters, which could be more strictly regulated by states. In modern practice, Federal Rule of Civil Procedure 11(b)(2) permits test case litigation if warranted by “a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.”
The ACLU or the NRA may still seek what they regard as law reform through innovative test cases. But cases unsupported by plausible arguments justify sanctions: money for the expenses incurred by the parties forced to defend frivolous cases and disciplinary action against offending lawyers, law firms and their clients.
The Trump litigation did not dispute existing precedent. The legal theories advanced, distinct from the very controversial factual allegations, were unremarkable. And, as evident from President Trump’s frequent pleas for contributions to a “defense fund,” his lawyers did not appear pro bono. The lawyers and their firms, apparently, billed at standard rates.
Some judges dismissed some cases as trivial, deficient in proof or otherwise failing to meet established standards. The sporadic, uncoordinated filings by lawyers with little, if any, experience in complex election litigation could not contrast more with Marshall’s meticulous planning, strategic timing and venue choice of Inc. Fund cases. The Inc. Fund always feared making “bad law,” precedents which might break its pattern of successful decisions.
Rudolph Giuliani’s inability to answer precise questions from a federal district judge in Pennsylvania on such technical, but crucial, issues as the standard of review for the court to apply in deciding the case would never have happened with Inc. Fund lawyers. Those errors are not as dramatic as Giuliani’s wild lies about facts, but experienced advocates know that they alone may defeat a case at the earliest stage.
The Trump lawyers are, of course, entitled to an opportunity to justify their strategies and arguments. They can explain why this litigation, apart from its political consequences, is not a brazen ethical challenge to courts and attorney disciplinary authorities.
Those early Inc. Fund lawyers, many now sadly gone, would be most interested in their explanations and the responses to that challenge.
Along with a constitutional crisis — perhaps now abated — the legal profession itself now confronts a crisis in professional ethics. Not since the Watergate scandal sent Attorney General John N. Mitchell to prison (and disbarment) for conspiracy, obstruction of justice and perjury has the American public so justifiably questioned the ethics of our profession. If the courts and the state disciplinary authorities do not act quickly and decisively, that public cynicism will be justified.•
• Kent Hull is a retired lawyer and adjunct law school professor who litigated civil rights and poverty law cases in federal and state trial and appellate courts for more than four decades. Opinions expressed are those of the author.