Do We All Need A Refresher Course In Ethics?

There are plenty of opinions that law students read and hopefully understand, although language in those opinions can be obscure at best. Even lengthy opinions can be instructive and mince no words. Just like the court’s opinion in King v. Witmer (the “Kraken” lawsuit).

All law students and lawyers should pay close attention to this opinion, for even though it’s a district court opinion in Michigan arising out of a 2020  election lawsuit, there is language in the opinion that all should grasp, not just in the realm of civil procedure (full disclosure: I hated that course and my D showed that), but in legal ethics, the way we in the profession are supposed to conduct ourselves in court proceedings and our responsibilities as officers of the court. Sanctions are the death penalty for lawyers in terms of our ability to practice law. If the sanctions are sufficiently severe and the particular state bar’s disciplinary process is sufficiently on the ball, the legal career can go down in flames, not a particularly desirous scenario.

Here’s just some of what the district court judge said in her opinion about the plaintiff lawyers’ legal ethics or lack thereof. (The court’s comments on civil procedure would take me way over my word count, and I wonder whether some would say that “civil procedure” is just as much an oxymoron as is “legal ethics.”) District Court Judge Linda Parker’s comments are just as important for dinosaur lawyers as for the newbies.

I would not want to be Sidney Powell, Lin Wood, or any of the other attorneys who took part in this Marx Brothers legal farce. (The lawsuit and its characters remind me of my favorite Marx Brothers movie, “A Night at the Opera,” which, if you watch nothing more than the stateroom scene, is worth three minutes of your time.)

Sanctions and referrals to bar disciplinary panels are not ever the way that you want to have your name in the media. You may be a publicity hound, but this is not the kind of publicity any lawyer, or in fact, any person, should ever crave.

The court’s opinion ripped plaintiffs’ lawyers a new one. The court said that the attorneys who filed the case “abused the well-established rules applicable to the litigation process in several respects.” The court said that they proffered claims not backed by law, claims not backed by evidence. (Speculation, conjecture, and suspicion don’t count as evidence; how about that?) They also didn’t do the necessary investigation and due diligence before filing the lawsuit. And, in contravention of the theory held by some lawyers that “delay is good,” the court said the proceedings were dragged out “even after they acknowledged that it was too late to attain the relief sought.”

The court’s language reminds us of our duties as lawyers as we are not just counsel but also officers of the court. Some lawyers either don’t remember that or choose not to.

“Indeed, attorneys take an oath to uphold and honor our legal system. The sanctity of both the courtroom and the litigation process are preserved only when attorneys adhere to this oath and follow the rules.” Courts, Judge Parker added, only impose sanctions when attorneys do not. “And despite the haze of confusion, commotion, and chaos counsel intentionally attempted to create by filing this lawsuit, one thing is perfectly clear: Plaintiffs’ attorneys have scorned their oath, flouted the rules, and attempted to undermine the integrity of the judiciary along the way.” A well-deserved and complete benchslap. As an aside, it might be a good idea for all attorneys to review Rule 11.

So, the court sanctioned the attorneys, found them to be in violation of the Michigan Rules of Professional Conduct and referred each of them to the disciplinary panels in every state in which each attorney is barred for disciplinary action. Plaintiffs’ lawyers also must pay the attorneys fees of the City of Detroit and others who defended the lawsuit, plus they must take 12 hours of CLE, including courses on election law and pleading standards. Appeals? Of course.

Traveling from Michigan to SoCal, a very prominent disgraced attorney here is in a world of hurt. Assets of Tom Girardi’s law firm, Girardi Keese, are up for auction. Items include a framed receipt from PG&E’s $236 million payout for the Hinkley water lawsuit, made famous by the film “Erin Brockovich,” a Los Angeles Lakers championship ring and several other pieces of Los Angeles sports memorabilia, a 2011 Cadillac GTS, over 100 bottles of wine, a signed 1960 photo with the Supreme Court justices (I assume California), and a signed Beach Boys album. What do you think is the value of these firm assets?

The mansion that the Girardis lived in, which was originally for sale at $13 million, has had several very impressive price cuts, now lists at just under $9 million.

And, if that’s not enough, the bankruptcy trustee in the Girardi Keese bankruptcy has filed a statement of assets and liabilities, and no surprise, it’s  not pretty. The firm owes more than $100 million and has less than $5 million in assets. Clawback time? Will the clients bilked out of their settlement funds recover anything at all?

I saw Tom Girardi at a Zoom bar event honoring the California Chief Justice, Tani Cantil-Sakauye, in December 2020. He was ebullient, talking up the profession and how great it was to be an attorney. Note that I say “was.” Just like the attorneys in the Kraken lawsuit, Girardi scorned his oath and flouted the rules. Shame on them; shame on him.

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Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at [email protected].