The Legal Ethics Of Lying About American Democracy

Andrew M. Perlman (Suffolk; Google Scholar), The Legal Ethics of Lying About American Democracy from Beyond Imagination? The January 6 Insurrection (forthcoming West Academic Publishing 2022), a book co-written by 14 law school deans.

Numerous lawyers contributed to the disinformation campaign that led to the storming of the U.S. Capitol on January 6, 2021. Some of the lawyers filed lawsuits that questioned the legitimacy of the presidential election, and others spread falsehoods while acting as legislators or in similar high profile roles. This chapter explores the potential disciplinary consequences of their behavior and the larger implications of their conduct for American democracy.

One theme of this chapter is that, when lawyers make claims about elections, the consequences of misinformation are severe and threaten to undermine trust in our democratic institutions. Given the stakes, the legal profession should apply well-established procedures and rules to discipline lawyers who cross ethical lines in the context of election-related litigation. In contrast, discipline is far more complex, both legally and politically, for lawyers who serve in public roles and do not represent clients, such as lawyer-legislators who lied about the election. Rather than seeking to discipline these lawyers with traditional sanctions, the profession should speak with one voice and across the political spectrum to condemn them for lying about core features of our democracy.

The risks here are enormous. Lawyers play a critical role in supporting and lending legitimacy to bedrock political institutions, such as the judiciary and the electoral system. When lawyers lie or offer misleading information about those institutions, they create an existential threat to democracy itself. The disciplinary system can help to encourage appropriate behavior at the margins, but even with these professional guardrails, it is an open question whether lawyers will exercise the kind of professional integrity that democratic institutions need.