The Lincoln Project was even briefly locked out of Twitter for a post that identified individual Porter Wright attorneys and encouraged the Lincoln Project’s 2.7 million followers to contact them. It’s never appropriate to subject individuals to harassment or threats. But holding law firms publicly accountable for their decisions to be involved in these cases is fair game.
As a general rule, we don’t want to discourage attorneys from representing unpopular clients. But facts matter, and there are some important distinctions to draw when deciding whether public criticism of attorneys is out of bounds.
The first distinction is criminal cases vs. civil litigation. An individual being criminally prosecuted has a constitutional right to legal representation. Defending the accused can be an ethical and professional obligation for a lawyer. A defense lawyer should not be shamed for representing an unpopular client confronting the awesome power of a government that could deprive him of his liberty or even his life. Conservatives have criticized attorneys defending terrorism suspects; liberals have criticized attorneys representing sexual predators such as Jeffrey Epstein. Both were wrong. But that principle does not come into play here. In the current situation, Trump is not being criminally investigated or prosecuted.
The second distinction is offense vs. defense. Helping a client who has been sued in a civil case and needs a defense is different from agreeing to initiate a case. Even an unsavory client deserves counsel if they are being hauled into court by another party or are being investigated by the government. True, an attorney does not have to agree to take on such a defense, but doing so is a response to litigation brought by others, not an affirmative invocation of the power of the courts.
That brings us to the lawsuits challenging the election. The Trump campaign and Republican groups in these cases are playing offense, not defense. They have filed lawsuits that appear to contain baseless allegations of fraud and that seek to have lawful votes rejected. For the attorneys, agreeing to bring such cases represents a choice, not a professional obligation. It’s fair for the public to hold accountable any lawyers who make that choice.
This public opprobrium is not because the client is unpopular; after all, Jones Day has received millions in fees from Trump and the Republicans over the years and was never subject to such a vigorous backlash. It’s because of the nature of the lawsuits. We want the ACLU to sue to uphold the First Amendment rights of unpopular clients like the Ku Klux Klan to march in a parade. But if a lawyer helps the Klan attack a civil rights law by filing a frivolous suit designed primarily to inflame racial tensions, why should that lawyer be immune from public criticism?
Clearly feeling the heat, Jones Day issued a statement saying it is not involved in suits alleging voter fraud or contesting the results of the election. The firm represents Pennsylvania Republicans in a Supreme Court case involving a court-ordered extension of the deadline for mail-in ballots. This claim has more legal basis than some of the other election-related litigation. Yet it is still a lawsuit seeking to reject thousands of votes cast in reliance on a ruling that sought to make voting easier during the pandemic. And although we now know there were not enough such votes to change the result in Pennsylvania, at the time the suit was filed it had the potential to affect the outcome of the election by disenfranchising thousands of voters.
A court may impose sanctions against a lawyer and firm for bringing a frivolous suit. But there’s no guarantee that will happen, and no reason that needs to be the only possible consequence for baseless or harmful lawsuits. Firm clients may choose to take their legal business elsewhere. Law students and lawyers looking for jobs may bypass the firms or may press them about this work when interviewing. Other lawyers already at the firms may choose to leave, as one Porter Wright attorney reportedly has already done. And members of the public may voice their disapproval, as many are doing now.
Law is a profession, but these mega-law firms are also big businesses. Like any business, they can be held accountable by the public — and by their other customers — for how they choose to deploy their considerable resources. It’s not out of bounds to criticize those who agree to bring cases that could be so damaging to our democracy.