But what does “with particularity” actually mean? In simple terms, a plaintiff alleging fraud must describe the “who, what, when, where, and how” of the alleged fraud. Vague allegations of misconduct—especially those based on hearsay (governed under Federal Rule of Evidence 802)—will often meet their end against the edge of Rule 9(b)’s blade. And it looks like the Trump team’s lawsuits are not faring any better.
We can assume that Trump’s lawyers are not incompetent, which leads to the question: If they know these lawsuits are unlikely to stick, why are they filing them? The ethical dilemma confronting these lawyers is greater than merely making their billable-hours quota and continuing their advancement in their firms. The deeper they venture down the Trump conspiracy rabbit hole, armed with nothing more than futile lawsuits premised on flimsy evidentiary or legal bases, the more their professional reputations and law licenses are at risk.
This was a stinging lesson for Trump’s former personal attorney Michael Cohen, who went to jail for committing campaign-finance felonies to protect his client in the days leading up to the 2016 election. Cohen’s current predicament, and the seemingly incremental steps he took to arrive there, serves as a perfect example of a lawyer crossing the line and not knowing when to refuse a client’s demands. Even the most zealous advocate for a client should not violate ethical or legal obligations merely to advance a client’s interests.
Every individual has the right to hire the lawyer of his preference and choosing, subject to financial and ethical limitations. No individual has the right to require his lawyer to risk her professional career to assuage that person’s bruised ego. Indeed, lawyers are ethically bound to terminate representation of a client if continued representation would result in the lawyer violating the rules of professional conduct (such as Rule 3.1) or other laws.
Recognizing how close you can get to the line before you topple over it is something that each of the members of the Trump campaign’s outside legal team should be carefully considering these days. Their continued ability to be licensed attorneys might ultimately depend on it.
This story is part of the project “The Battle for the Constitution,” in partnership with the National Constitution Center.
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