Could Arizona attorneys who filed election challenges face consequences?

Posted at 10:25 PM, Nov 24, 2020
and last updated 2020-11-25 07:35:35-05

While all three lawsuits filed in Maricopa County since Election Day have all been dismissed, lingering effects from the challenges could fall on attorneys who pushed cases through Arizona's judicial system.

Democratic New Jersey Congressman Bill Pascrell issued complaints in five states, including Arizona, accusing attorneys who represented President Trump of violating a Rule of Professional conduct that reads in part:

“[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a good faith basis in law and fact for doing so that is not frivolous, which may include a good faith and nonfrivolous argument for an extension, modification or reversal of existing law.”

The letter called for an investigation into the conduct of four attorneys who brought forth at least one claim in Maricopa County. Kory Langhofer and Thomas Bastile with Statecraft law filed a suit arguing some voters were disenfranchised on Election Day, when on-site tabulation machines displayed an error message. The suit claimed poll workers submitted ballots despite the message, which may have kept some presidential votes from being counted.

Also included in the filing, attorneys Eric Spencer and Brett Johnson with Snell and Wilmer. However, the two withdrew from the campaign's lawsuit less than 24 hours later.

Could the filing of the challenge itself trigger potential action by the Arizona Bar?

ABC15 asked two experts for their input.

“Lawyers are not like politicians in the sense that they actually have professional obligations," said Jason Harrow, a constitutional lawyer who argued the legal authority of Presidential electors before the U.S. Supreme Court. "Some of those professional obligations are they are not allowed to lie, they are not allowed to do things just for purposes of the plane or harassment and they are not allowed to bring cases that they know are absolute losers with no good faith arguments.”

"There are a select sliver of cases in which they lack merit and they shouldn’t clog the court system, or in which sadly a lawyer might make a false statement for fact or law," said Keith Swisher, a member of the Arizona Bar Ethics Advisory Committee. "In those two instances, a disciplinary authority does have the ability to go forward not only to investigate but to actually disciple the lawyers at hand.”

Both say it's up to the bar to decide whether or not to move forward with a formal investigation but say it will likely take the allegations seriously enough to assign members to examine whether or not evidence of misconduct exists.

"If it did, then the conversation moves from whatever his conduct occurred to what the sanctions should be," added Swisher.

When reached for comment, Statecraft Law attorneys Langhofer and Bastile said their firm has no official comment to the congressman's complaint.

Judge Daniel Kiley, who heard arguments in the case brought forward by the Trump Campaign, applauded lawyers on all sides, saying "I'm aware of the time constraints and urgency of the matter. I'd like to commend all counsel for an outstanding, professional job in putting this case together and presenting it in just a matter of days. So you-- it was very well presented and you should all be commended for that."