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Pa. lawyers in Donald Trump's election fight slapped with ethics complaints

Jeremy Roebuck
The Philadelphia Inquirer (TNS)

A legal advocacy group formed in hopes of disbarring and disciplining lawyers who aided Donald Trump's push to overturn the outcome of the 2020 election filed complaints Thursday with the Pennsylvania Supreme Court against seven lawyers in the state for their involvement in the former president's legal efforts.

The list of those targeted by The 65 Project include bit players like attorney and conservative talk show host Marc A. Scaringi, of Harrisburg, who sponsored Rudy Giuliani to argue on behalf of the Trump campaign in Pennsylvania's federal courts, as well as some of the most in-demand GOP elections lawyers in the state, like Ronald Hicks and Carolyn McGee, who most recently represented Republican Senate candidate David McCormick in recount litigation during his primary campaign against Mehmet Oz.

Additionally, the group filed complaints against three out-of-state lawyers who participated in Pennsylvania election litigation — including Trump attorney Jenna Ellis, who is now serving as a senior legal adviser to state Sen. Doug Mastriano, the Republican nominee in this year's governor's race.

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All of them, the organization said in their filings, lent their "law license and the legal profession's integrity and power to an orchestrated effort to undermine our nation's elections."

"It has now become part of the political toolbox for a candidate to allege fraud and seek to ... undermine people's faith in the outcome of elections any time they lose. We need to take that away," said Michael Teter, managing director of The 65 Project, named after the 65 lawsuits filed in 2020 seeking to overturn the election. "The best way to do that with lawyers is to ensure there are personal or professional consequences to the actions they take."

Thursday's filings follow 11 similar complaints The 65 Project has filed with bar associations and disciplinary boards in other states against higher-profile targets involved in Trump's 2020 fight like Ellis and U.S. Sen. Ted Cruz (R., Texas).

FILE - Campaign Manager Bill Stepien, left, watches as President Donald Trump speaks at his campaign headquarters in Arlington, Va., on Election Day, Tuesday, Nov. 3, 2020. Stepien will be a key witness Monday, June 13, 2022, as the House select committee investigating the Jan. 6, 2021 attack on the U.S. Capitol continues a series of hearings to reveal the findings of a year-long investigation into the riot by a mob loyal to Trump. (AP Photo/Alex Brandon, File)

None of the targeted Pennsylvania attorneys immediately responded to requests for comment.

But those who have previously been singled out by the group have dismissed its efforts as politically motivated attacks. Some legal scholars have also questioned The 65 Project's tactics, worrying that their campaign — buttressed by TV ad buys and publicity heavy rollouts of new complaints — upends the traditionally confidential process for attorney disciplinary proceedings.

"That's basically designed to embarrass these lawyers and that may have the effect of discouraging lawyers from engaging in politically involved work, even if they're playing by the rules," Bruce Green, a legal ethics scholar at Fordham University, told CNN in an interview earlier this year.

In Pennsylvania, the Office of Disciplinary Counsel, which investigates allegations of attorney misconduct for the state Supreme Court, keeps complaints against lawyers private until they are vetted and deemed to have merit.

There are no prohibitions, however, on the filer of a complaint speaking publicly about it.

Teeter defended his organization's strategy, saying that it was important for future elections to raise awareness about efforts to misuse the court system to add a sheen of legitimacy to baseless claims of election fraud. The 65 Project's work is guided by an advisory board of prominent legal ethicists and attorneys, some of whom with conservative credentials.

"This effort is not just about the past," Teeter said. "Trump supporters are fighting to seize control of the state and local election process and the courts are a key part of their strategy to sabotage current and future elections."

Most of the attorneys who were singled out by Teeter's group Thursday were involved on some level in the Trump campaign's primary lawsuit challenging Pennsylvania's election results — Donald J. Trump for President v. Boockvar, a case that culminated in a Nov. 18, 2020, hearing in Williamsport before U.S. District Judge Matthew W. Brann.

Initially, the campaign's suit — led by Hicks and McGee, Pittsburgh-based lawyers with the law firm Porter Wright, and Philadelphia attorney Linda Kerns — sought to delay certification of the state's election results, citing what they described as mismanagement of the process by which votes were cast and counted.

But by the time of the hearing, all three had sought to withdraw from the case and Trump sought to replace them with lawyers like Giuliani who were more willing to embrace his false claims of widespread fraud and push for more drastic solutions — including a court order that would not just delay certification but set aside all 6.8 million votes cast that year.

Giuliani's wildly stumbling performance in court — in which he lobbed wild conspiracy theories about a cabal of Democratic officials who had conspired together to rig the outcome of the race in Pennsylvania with mail voting — bore little relation to anything his predecessors in the case had argued in their legal filings.

And despite his claims of widespread fraud, he failed allege — let alone provide evidence for — a single instance of a vote being illegally cast.

Eventually, Brann dismissed the case with a scathing opinion calling it a tortured "Frankenstein's monster" of a legal theory seeking a remedy that he described as "unhinged."

"One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption," the judge wrote. "Instead, this court has been presented with strained legal arguments without merit and speculative accusations ... unsupported by the evidence."

His ruling was later affirmed by a three-judge panel of the Philadelphia-based U.S. Court of Appeals for the Third Circuit which also took a dim view of the arguments and evidence the Trump campaign marshaled to bolster their case.

"Calling an election unfair does not make it so," Circuit Judge and Trump appointee Stephanos Bibas wrote for the panel. "Charges require specific allegations and then proof. We have neither here."

In its disciplinary complaints Thursday against Hicks, McGee, and Kerns, the 65 Project argued that their departures from the case — before the campaign's arguments reached their most extreme — should not absolve them.

It cited professional rules barring lawyers from defending matters in court that they know lack merit.

"Withdrawing from the matter after helping light the fuse does not shield Mr. Hicks from responsibility," the organization wrote, "nor does it alter the fact that appropriately disciplining him for this misconduct is an essential part of deterring future abuse."

The other attorneys targeted by 65 Project complaints Thursday include:

  • Bruce S. Marks, a former Republican state senator from Philadelphia who advised the Trump campaign in the Trump for President v. Boockvar suit;
  • Brian Caffrey, a Harrisburg lawyer who worked alongside Scaringi and entered an appearance in the Trump for President v. Boockvar suit;
  • James Bopp Jr. and Anita Milanovich, conservative attorneys from Indiana and Montana respectively who filed a short-lived suit seeking to set aside Pennsylvania's election results that was voluntarily withdrawn six days after filing;
  • Walter Zimolong, a Wayne-based attorney also involved in that case.