"His lawyers have decided to dispense with the Constitution, the ethics prohibition against frivolous lawsuits, truth, fairness and honor in an effort to serve their client’s purposes. "

Congressman and attorney Louie Gohmert’s specious lawsuit to force Vice President Pence to overturn the results of the 2020 election has been, predictably, dismissed by two federal courts. 

There must be consequences for the disgraceful conduct of Gohmert, his lead attorney, William L. Sessions, and his other lawyers in this spectacle. 

Every client deserves vigorous, energetic, devoted and imaginative representation. But, even if a client wants it, a lawyer must never represent a client in a way that is frivolous, dishonest, untruthful, and malicious and an attorney must not knowingly induce them to do so. Gohmert and his lawyers have done just this. 

The lawsuit was premised on an absurd reading of the 12th Amendment to the U.S. Constitution. How absurd? In their filing Gohmert’s lawyers said that the 12th Amendment gives the Vice-President, in his capacity as President of the Senate, “the exclusive authority and sole discretion in determining which electoral votes to count for a given State.” 

Here’s what the 12th Amendment actually says about his role in the vote-counting process: “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” That’s it. Not a single word in that Amendment, or in any other, gives the Vice-President any role whatsoever in choosing which votes to count let alone the extraordinary, unilateral power to select who the next President should be, regardless of the outcome of votes in the various states. His lawyers, without any reference to case law or any other authority for this outrageous and indefensible argument, made a filing in federal court with this specious claim as its centerpiece.

For centuries, lawyers have worked to create standards of ethics that hold them apart from other professions. Lawyers swear an oath to uphold standards of honor, truth and fairness and are prohibited by State ethics codes from filing frivolous lawsuits. The courts expect these standards to be upheld. For example, any time a lawyer files anything in federal district court, the lawyer must promise that any arguments made in the filing are “warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law [and that] the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.” 

It is hard to conceive of a more self-evident breach of these oaths and ethical prohibitions than this case. The client wants to overturn — baselessly — the results of a free, fair and secure election. His lawyers have decided to dispense with the Constitution, the ethics prohibition against frivolous lawsuits, truth, fairness and honor in an effort to serve their client’s purposes. This conduct is an unacceptable abuse of the courts and a perversion of the honor and privilege of a license to practice law.

It is up to lawyers to speak out against this behavior. 

We, the undersigned, want it known that we do not accept the behavior of the lawyers in this case. We do not tolerate it. We do not consider lawyers who act in this way to be suitable members of our profession. And we call on the disciplinary bodies responsible for policing these lawyers to immediately open investigations and discipline them for their disgraceful conduct.

Signed:

• Scott Harshbarger, Chairman – Former National President of Common Cause and two-term Attorney General of Massachusetts
• Dennis Aftergut – Of Counsel at Renne Public Law Group; former federal prosecutor and San Francisco Chief Assistant City Attorney
• Christine H. Chung – Former partner, Selendy & Gay PLLC and Quinn Emanuel Urquhart & Sullivan LLP; Former Senior Trial Lawyer, International Criminal Court
• Fernande (Nan) R.V. Duffly– Former Justice of the Massachusetts Supreme Judicial Court
• Evan Falchuk – Former independent gubernatorial candidate for Massachusetts and founder of the United Independent Party
• Nicholas Fels – Retired partner, Covington & Burling LLP
• Eugene R. Fidell– Senior Research Scholar, Yale Law School, and counsel, Feldesman Tucker Leifer Fidell LLP
• Fred M. Lowenfels– General Counsel Emeritus at Trammo, Inc.
• Stanley J. Marcuss – Former Counsel to the U.S. Senate’s International Finance Subcommittee; former Senior Deputy Assistant Secretary in the U.S. Commerce Department; former partner, Milbank, Tweed, Hadley & McCloy; former Senior Fellow at Harvard’s Kennedy School; retired partner, Bryan Cave Leighton Paisner
• James F. McHugh – Former Associate Justice, Massachusetts Appeals Court
• Thomas Mela – Retired Managing Attorney of the Massachusetts Advocates for Children
• John T. Montgomery – Ropes & Gray, former managing partner (retired)
• Cheryl Niro – Past President, Illinois State Bar Association. Former Partner, Quinlan & Carroll, Ltd.
• Gershon M. (Gary) Ratner – Co-founder, LDAD; Founder & Executive Director, Citizens for Effective Schools; former Associate General Counsel for Litigation, U.S. Department of Housing & Urban Development; former Associate Director for Litigation, Greater Boston Legal Services
• Lauren Stiller Rikleen – President, Rikleen Institute for Strategic Leadership
• Estelle Rogers – Former Trial Attorney, United States Department of Justice