In the aftermath of the 2020 Presidential election, the role of lawyers in election challenges has become a focal point in discussions about legal ethics. The participation of lawyers in efforts to overturn the election results has highlighted the need for a deeper understanding of the ethical boundaries set by the American Bar Association’s Model Rules of Professional Conduct. As legal professionals consider representing clients in future election cases, it is crucial to navigate the ethical landscape with care to uphold the integrity of the legal profession and protect democratic principles.
Understanding the Ethical Landscape
Lawyers are bound by several key ethical duties that become particularly significant in the context of election litigation. These include the duty to:
Competence (Rule 1.1): Lawyers must possess the necessary legal knowledge, skill, thoroughness, and preparation for representation.
Exercise Independent Professional Judgment (Rule 2.1): Lawyers should provide candid advice and refrain from allowing personal biases or external pressures to compromise their professional judgment.
Avoid Frivolous Claims (Rule 3.1): Lawyers must not bring or defend a proceeding unless there is a basis in law and fact that is not frivolous.
Refrain from Making False Statements (Rule 3.3 and Rule 4.1): Lawyers must not knowingly make false statements of fact or law to a tribunal or third parties.
Avoid Assisting in Fraudulent Conduct (Rule 1.2(d) and Rule 8.4(c)): Lawyers must not assist clients in conduct that is criminal or fraudulent.
Lessons from the 2020 Election Challenges
The involvement of lawyers in the attempts to challenge the 2020 election results provides a cautionary tale. Lawyers such as Rudolph Giuliani, Jeffrey Clark, Kenneth Chesebro, and John Eastman faced significant ethical scrutiny for their roles. The legal strategies employed often involved promoting unfounded claims of election fraud and advocating for legal theories that lacked a basis in established law.
Meritless Claims and False Statements: Many lawyers involved in the election challenges made statements and pursued legal actions that were unsupported by evidence. This conduct violated rules against making false statements and pursuing frivolous litigation, leading to potential disciplinary actions.
Pressure and Ethical Judgment: Lawyers must maintain independent judgment and resist external pressures that could lead to unethical conduct. The actions of those who resisted pressure to overturn the election results demonstrate the importance of adhering to ethical standards even in politically charged situations.
First Amendment Considerations: While lawyers have First Amendment rights, these rights are limited by their ethical duties. The balance between free speech and ethical obligations is complex, especially when speech could undermine public trust in democratic processes.
Practical Guidelines for Lawyers
When considering representation in election-related cases, lawyers should adhere to the following guidelines to ensure ethical compliance and protect the integrity of the legal profession:
Thoroughly Assess the Merits: Before accepting a case, evaluate the factual and legal basis of the claims. Ensure that there is credible evidence to support any allegations of election irregularities or fraud.
Exercise Independent Judgment: Maintain objectivity and avoid allowing political affiliations or pressures to influence your legal advice and actions.
Communicate Transparently: Provide clients with honest assessments of their cases, including the potential legal consequences of pursuing certain strategies.
Uphold Integrity in Public Statements: Be cautious about making public statements regarding election cases. Ensure that any statements made are truthful and do not mislead the public or undermine trust in the electoral process.
Stay Informed on Ethical Standards: Continuously update your understanding of ethical rules and standards, particularly as they relate to election law and litigation.
Conclusion
As stewards of the legal system, lawyers have a pivotal role in safeguarding democratic processes. By adhering to ethical standards and exercising sound judgment, lawyers can contribute to a fair and transparent electoral system while upholding the public’s trust in the legal profession. Whether navigating the complexities of election law or providing counsel in politically sensitive situations, ethical diligence remains paramount.
Brandon L. Blankenship is an assistant professor, continuing legal education presenter, and business educator. He and his wife Donnalee live on their hobby farm south of Birmingham, Alabama.
The Pacific Legal Foundation (PLF)1 is a nonprofit public interest law firm in the United States, dedicated to defending individual liberty and property rights against government overreach. Established in 1973, it is the oldest libertarian public interest law firm in the country.
PLF provides pro bono legal representation, files amicus curiae briefs, and holds administrative proceedings with the aim of supporting property rights, equality and opportunity, and the separation of powers. The organization is known for its strategic litigation, communications, and research efforts to battle for freedom in courts and public opinion.
The foundation has a robust record in the United States Supreme Court, having won 18 cases as of April 2024. Its litigation work includes challenging regulations that it views as infringing on individual rights, such as property rights and free speech, and opposing laws that it believes violate the separation of powers.
PLF operates without government funding, relying on donations from individuals, foundations, and small businesses[2]. It has offices in Sacramento, California; Arlington, Virginia; and Palm Beach Gardens, Florida, and employs over 100 staff members.
Brandon L. Blankenship is an assistant professor, continuing legal education presenter, and business educator. He and his wife Donnalee live on their hobby farm south of Birmingham, Alabama.
Freedom is a core value deeply ingrained in American culture and identity. It's right there in the Declaration, that we are endowed by our Creator "with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." Since freedom, rights, and liberty are often used interchangeably which can be confusing, I distinguish them. People have the liberty make individual choices about their life, beliefs, and actions without undue government interference, to self-determine.
Rather than a list of "rights," people first have liberty. Liberty extends to what you think and say including the liberty to think nothing, say nothing. It extends to participating in government. It extends to the opportunity to pursue economic goals, own property, and engage in free enterprise. It extends to what you do for housing, clothing, and what you eat including being homeless, naked, and starving.
The government can limit liberty to the degree it has a government function to do so. Considering the two most suspect liberties above, the government can limit people's nakedness in public. It can also limit free enterprise. It is a government function to restrict the manufacturing and distribution, for example, of methamphetamines. People, too, can impose limitations on themselves. Most people decide for themselves to put on clothes before venturing outside. Most people choose not to manufacture "meth" because use results in severe health issues, including dental problems ("meth mouth"), skin sores, and increased risk of infectious diseases due to needle sharing. In a group, the quality of liberty is directly proportional to people's choices to accept personal responsibility and satisfy their obligations.
For many Americans, liberty, including the liberty of self restraint, is the defining characteristic of their national identity. This emphasis on liberty has deep historical roots, from the motive energizing immigration to the New World to the American Revolution's fight against British rule.
When a person is found guilty of a crime in the United States and sentenced to prison, the primary consequence is the deprivation of their liberty. A person in prison is told when to get up, when and what to eat, when to shower, and when to go to bed. Whatever liberties might remain are severely restricted. The restriction is intended to create a safe environment inside the prison walls. It is also intended for retribution.
Retribution is the concept that people found guilty of a crime should be punished. Their punishment is the deprivation of liberty. When punishment is proportionate to the gravity of the offense, it serves as a form of justice for the victim and society at large.
Where a judge intends to exact punishment beyond confinement, they can order specific form of punishment. A historic example is "hard labor." A judge could simply order a person to serve three years in prison or they could order three years in prison at hard labor. Hard labor is a punishment where prisoners are required to perform difficult and physically demanding work as an additional punishment for their crimes. Hard labor as punishment has been banned in many countries but is still practiced.
In the context of prisons, the phrase "conditions of confinement" refers to the living environment and treatment of inmates within a correctional facility. Where the quantity of a criminal sentence is simply a number of years, the quality of a criminal sentence are based on conditions of confinement. The quality of a three year sentence is very different if it is three years at hard labor versus three years with no labor. Where courts do not order certain conditions of confinement, what do we intend for those conditions to be? Do we, for example, intend for people in prison to be
subjected to temperatures above 100 degrees Fahrenheit or below freezing?
starved?
placed in a room with so many others that it encourages disease and violence (on a July visit to an Alabama jail, I saw six men in one six foot by 8 foot (6'x8') cell with a shared toilet)?
routinely assaulted (beaten, cut, stabbed)?
extorted?
raped?
murdered?
I suggest that whatever our intention is, it should be written into the court order. And if a court resists or refuses to write it out, it should be scrutinized as punitive excess.
Brandon L. Blankenship is an assistant professor, continuing legal education presenter, and business educator. He and his wife Donnalee live on their hobby farm south of Birmingham, Alabama.
The Freedom Forum1 is a nonpartisan foundation dedicated to promoting and protecting First Amendment freedoms in the United States. Their mission is to foster the freedoms of religion, speech, press, assembly, and petition for all Americans.
They educate people about First Amendment rights through classes, events, and digital content.
They conduct annual surveys on Americans' understanding of these freedoms.
They celebrate champions of free expression and train journalists to create inclusive newsrooms.
The organization is committed to diversity, equity, and inclusion.
The Freedom Forum encourages people to get involved by:
Signing up for their newsletter
Taking their classes
Pledging support for First Amendment freedoms
Following them on social media
Supporting their work
They emphasize that understanding and exercising these fundamental freedoms is crucial for protecting them for future generations.
Brandon L. Blankenship is an assistant professor, continuing legal education presenter, and business educator. He and his wife Donnalee live on their hobby farm south of Birmingham, Alabama.
In philosophy and economics, few theories have garnered as much attention as the Capability Approach, a concept developed by the renowned Indian economist and philosopher, Amartya Sen. This groundbreaking approach, born in the 1980s, has been instrumental in shifting the focus of moral significance from traditional methods to the individual's capability of achieving the kind of lives they value.
The Birth of the Capability Approach
Traditional ethical evaluation methods, such as utilitarianism or resourcism, primarily focus on subjective well-being or the availability of means to a good life. However, Sen's Capability Approach takes a different route. It defines a person's ability to live a good life in terms of their access to valuable 'beings and doings', such as good health or loving relationships. This approach has been extensively used in human development contexts, including by the United Nations Development Programme.
Beyond Development: The Capability Approach
The Capability Approach has not only been confined to the realm of development. It has also attracted academic interest for its potential application in evaluating social arrangements beyond development contexts, such as gender justice. This has led to further development of this approach into a capability theory of justice by philosopher Martha Nussbaum.
Nussbaum's Capability Theory of Justice
Building on Sen's work, Martha Nussbaum has developed a Capability Theory of Justice that is grounded in human dignity. Her theory includes a list of fundamental capabilities and a threshold. Nussbaum's theory, despite facing criticism for its perceived cultural bias and over-reliance on legal and moral philosophy, is often seen as a more philosophically rigorous development of Sen's Capability Approach.
The Capability Approach
Martha Nussbaum's theory of justice centers on the concept of human capabilities and dignity. She argues that a just society should ensure all individuals have the opportunity to develop and exercise a set of core capabilities that are essential for human flourishing. Nussbaum proposes a list of ten central capabilities, including
life,
bodily health,
bodily integrity,
senses and imagination,
emotions,
practical reason,
affiliation,
interaction with other species,
play,
and control over one's environment.
Her approach aims to provide a partial theory of justice based on human dignity, this list of fundamental capabilities, and the idea of a threshold level that all people should be able to reach. Nussbaum's theory is internationalist in scope, arguing that these capabilities should be guaranteed to all human beings globally, regardless of factors like gender, race, or nationality. While her work builds on Amartya Sen's capability approach, Nussbaum's version is more systematic and extensive, offering a more concrete framework for evaluating social justice and guiding policy decisions.
The Relationship Between Capability Theory of Justice and Self-Determination Theory
Nussbaum's Capability Theory of Justice and Self-Determination Theory (SDT) both emphasize the importance of certain fundamental elements for human well-being and flourishing, though they approach these elements from different angles. Nussbaum's Capability Theory identifies a list of essential capabilities that individuals must have the opportunity to develop and exercise to live a life of dignity (listed above). SDT focuses on three basic psychological needs: autonomy, competence, and relatedness, which are considered crucial for psychological growth, integrity, and well-being.
Research has shown that there is a substantial association between the capabilities identified by Nussbaum and the basic psychological needs posited by SDT, suggesting that fulfilling these needs can mediate the relationship between capabilities and overall well-being. Essentially, while Nussbaum's theory provides a broader framework for social justice by ensuring the development of essential human capabilities, SDT offers a more focused psychological perspective on what is necessary for individuals to thrive. Both theories converge on the idea that meeting these fundamental requirements is critical for human wellness, indicating a complementary relationship between the two approaches in understanding and promoting human well-being.
Criticisms and Theorising
Like any theory, the Capability Approach has faced its share of criticism. Critics have raised concerns about its perceived illiberalism, under-theorisation, individualism, and information gaps. In response, several philosophers have developed theoretical accounts to elaborate on the Capability Approach. For instance, Ingrid Robeyns proposed a procedural approach for selecting capabilities for specific purposes, while Elizabeth Anderson suggested a justice theory based on equal capability of democratic citizenship.
Conclusion
The Capability Approach and Nussbaum's Capability Theory of Justice have significantly influenced the discourse on social justice and human development. Despite the criticisms, these theories continue to provide a valuable framework for evaluating social arrangements and advocating for a more equitable society. As we continue to grapple with issues of inequality and injustice, the Capability Approach offers a unique lens through which we can envision a more just world.
Brandon L. Blankenship is an assistant professor, continuing legal education presenter, and business educator. He and his wife Donnalee live on their hobby farm south of Birmingham, Alabama.
In philosophy and science, first principles refer to basic propositions or assumptions that cannot be deduced from any other proposition or assumption. They are the fundamental principles from which knowledge and understanding are derived.
If we were to expand the concept to law in the United States, those first principles might be:
Ordered Liberty: The principle that people have the freedom to act with minimal interference, access opportunities, and resources fairly within the limits of the law and without infringing on others' rights.
Popular Sovereignty: The principle that the ultimate source of political power resides with the people, who have the inherent authority to create and alter governments, constitutions, charters, and laws.
Natural/Inalienable Rights: The principle that some rights are considered to belong to all humans by nature and can only be justly limited through due process. Examples of such rights include life, liberty, and property.
Rule of Law: The principle that mandates that the law governs everyone, including those in positions of power. It ensures that laws are applied consistently and fairly, and that governments derive their authority from the consent of the governed.
Fundamental fairness: The principle that judicial proceedings deliver fair and impartial treatment, the opportunity to present one's case, protection against arbitrary or capricious actions, and adherence to established legal procedures.
Stare Decisis: The principle inherited from English common law that is followed by U.S. courts. It means that courts are bound by precedent and decisions made in previous cases. This principle helps ensure consistency and predictability in the application of the law.
Separation of Powers: The principle of separation of powers divides the powers of the government into three branches: the legislative, executive, and judicial branches. This separation helps prevent the concentration of power and provides checks and balances.
There may be other first principles, but this list is a good place to start when considering legislation, liberty and the proper function of government.
Brandon L. Blankenship is an assistant professor, continuing legal education presenter, and business educator. He and his wife Donnalee live on their hobby farm south of Birmingham, Alabama.
