Legal Ethics

Trump Lawyers Say They Can't Be Sanctioned Because They Didn't Sign Anything (P.S. They Totally Signed Things)

Let's face it, it's not the dumbest legal argument we've seen in the last few months.

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(Photo by Drew Angerer/Getty Images)

After spinning yarns about Hugo Chavez running Canadian-based Dominion Voting from beyond the grave to flip votes — a claim that even OAN is now running from — Team Kraken is now facing Rule 11 sanctions in Michigan for adopting a litigation strategy based on theories that the toaster has been yelling at them every morning. Earlier this month, the City of Detroit filed a motion for sanctions and requesting the court refer the seven attorneys involved — including Sidney Powell and Lin Wood — to their local bars for disciplinary action after growing tired of serving as the punching bag in the lawsuit against Michigan officials based on wild innuendo.

In response, local counsel Stefanie Lambert Junttila forcefully opposed Detroit’s motion based on… well, stuff.

The City’s Motion for both Rule 11 sanctions and for disbarment of attorneys and their referral to state bar associations for disciplinary action is procedurally improper because it violates the requirement that a Rule 11 sanctions motion “must be made separately from any other motion,” Fed. R. Civ. P. Rule 11(c)(2) (emphasis added).

This is point 1. This is what they feel is the best argument they have against this motion. They’re going with “because you asked for sanctions and a referral to disciplinary authorities the motion is invalid.” As opposed to reading that text as “you can’t just dump sanctions requests at the bottom of the motion to dismiss” like EVERYONE ELSE WOULD READ IT.

This sets the tone for the whole response.

It filed its specious motion in its own improper effort to promote its own agenda with the media and to distract from explosive evidence of voter fraud.

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If “explosive” is defined as something that disintegrates into nothing amid a loud spectacle, then, yes, it’s safe to characterize the evidence of voter fraud as explosive.

There is no legal or factual basis for this Court to grant the City’s requested relief. Accordingly, because the City has submitted one motion for Rule 11 sanctions and other types of punitive non-Rule 11 relief, the entire motion must be denied.

As support for this, they cite a case where sanctions were requested in a motion to dismiss without noting this key distinguishing characteristic… because of course they didn’t.

Secondly, the City’s motion must be denied as to all attorneys who did not actually appear or sign any pleadings in this matter. Rule 11 is concerned with the signing of frivolous pleadings and other papers. Oliveri v. Thompson, 803 F.2d 1265, 1274 (2nd Cir. 1986). It may not be invoked against attorneys whose names appear on a pleading but who have not signed the pleading or otherwise formally appeared in the action. In re Ruben, 825 F.2d 977, 984, (6th Cir. 1987).

Yes, this is going to turn into a claim that only the attorney who physically signs a filing can be on the hook for professional misconduct. Do you think it’s weird that they’re citing 34-year-old cases in an era of electronic filing? Go with that intuition! Rule 11 received an amendment to address this that makes it clear that its application does not turn on the magic of an ink signature but on the arguments the attorney represents to the court — which can take the form of a signed document or in a myriad other ways up to and including later adopting the arguments in a filing they didn’t sign.

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Because a sanctions rule that only tags the local counsel would be insane and invite professional chaos.

This is literally the argument of a cartoon villain: “You can’t capture me, I was never really here! [drops smoke bomb and slinks into the night]”

The only signator or appearance made in the short life of this case has been by Plaintiffs’ local counsel. No other counsel signed any pleadings.

This case has enjoyed a short life. But apparently not short enough to fact check all the filings. Or in this case the first f**king filing! Let’s look at the Complaint:

In the immortal words of Homer Simpson, “D’oh!”

So now the argument has moved beyond “signature” to “ink signature.” Hoo boy. I guess it’s also worth mentioning that there is no magic wand that allows lawyers to commit sanctionable actions while pro hac admission is pending. Let’s lodge that now before there’s a supplemental filing.

Wood at least avoids making even an electronic signature, allowing him to take advantage of the argument that “[w]here plaintiff signed filed papers, but the attorney’s name appeared on papers only in typewritten form, sanctions cannot be imposed on attorney since Rule 11 focuses only on individual who signed document in question.” This quote is from another case decided before the amendment of Rule 11 and in any event focuses on plaintiffs going rogue and not a group of co-counsel filing a motion under one signature.

This is all by way of pinning hopes on the argument that the court cannot consider the public statements made by Powell and Wood that provide the weight of the evidence that this matter was ill-conceived at best and patently frivolous at worst and designed to only to harass because neither of them “signed” the documents. Except Powell did. And that’s not the standard anyway. And this is all absurdist theater.

The City’ Rule 11 motion claims regarding frivolous legal claims and unsupported factual allegations must be dismissed for failure to provide 21-days’ notice and opportunity for response under Rule 11(c)(2).

Except, as we were writing back in December, they actually had received a copy of the motion in advance. Detroit received no reply, though Lin Wood posted on his Twitter account — because he wasn’t banned for advocating the murder of Mike Pence yet — “When you get falsely accused by the likes of David Fink & Marc Elias of Perkins Coie (The Hillary Clinton Firm) in a propaganda rag like Law & Crime, you smile because you know you are over the target & the enemy is running scared!” That’s because Law & Crime reported that the safe harbor period was triggered some time before December 15. Which is, of course, more than 21 days before the sanctions motion was actually filed on January 5, about which we probably would have written on January 6 if the country weren’t in the midst of a coup inspired by lies told in these exact filings by then.

This argument is more of a timing technicality play than anything else.

Indeed, the Advisory Committee Notes to rule 11 state: “To stress the seriousness of a motion for sanctions and to define precisely the conduct claimed to violate the rule, the revision provides that the ‘safe harbor’ period begins to run only upon service of the motion. In most cases however, counsel should be expected to give informal notice to the other party, whether in person or by a telephone call or letter, of a potential violation before proceeding to prepare and serve a Rule 11 motion.”

The plaintiffs have now moved to voluntarily dismiss the case, but did so after the 21-day cure period. So they’re arguing that the 21 days actually begin on January 5 rendering them in the clear. Except the advisory note is trying to protect against sandbagging — where counsel vaguely threatens sanctions and then drops a detailed motion later. But in the case where the motion is available in full form at the time of first notice, which is what Detroit represents in its Rule 11 filing, then the safe harbor expired already.

After running through these arguments — ostensibly the good ones — the response tangles with the weightier question of whether or not the case was frivolous. Ironically, this is probably the “best” argument that plaintiffs’ counsel has because while probably jiggery-pokery, as Justice Scalia would put it, it does succeed in muddying the question enough that a judge might balk at the drastic measure of imposing sanctions. These are all issues of first impression, they argue and novel claims cannot be declared frivolous based on hindsight. And while it’s true that these were issues of first impression to the extent that no court had previously entertained the idea that Chinese officials trucked in fake ballots on the orders of dead South American dictators, it seems to make an ass of the law to suggest that every bonkers legal claim gets one freebie.

Or in this case… roughly 60.

The only “specific conduct” identified in the Motion are “[t]he allegations about supposed fraud in the processing and tabulation of absentee ballots by the City at the TCF Center,” which according to the City, “have been rejected by every court that has considered them,” ECF No. 78 at 7, but does not cite to any case where this was “debunked.”

If that’s confusing, it’s because they’re trying to save face on the way out the door of professional credibility by claiming that judges rejecting their claims as legally nonsensical didn’t reach the merits so therefore — TECHNICALLY — they could still be true! The response issues the bold but dangerous gambit that any sanctions would therefore require an evidentiary hearing to evaluate all the flimsy affidavits and “expert” opinions out there. Does the court want to waste judicial resources wading through this garbage? No. Would Team Kraken be screwed if the court did? Yes.

They even go so far as to try and rehabilitate “Spyder” — the military intelligence expert whose identity they tried to shield because it turns out he was never a military intelligence expert — by saying yeah, but you never proved that he was wrong about the conjectures he had no expertise to make! Honestly, it’s shocking that they didn’t devote two pages to defending Melissa Carone in here.

But this is why sanctions are so hard to secure. There’s a lot of pressure on judges to avoid dropping the hammer, no matter how troubling the conduct.

By the way, in case you were wondering, local counsel Junttila is not only the only signature on this response, but the only lawyer identified on the last page. That’s commitment to the bit.

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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