Robert W. Adler: Lee makes a law professor’s job harder

(Rick Egan | The Salt Lake Tribune) Sen. Mike Lee speaks at the Utah Association of Realtors office where GOP candidates gathered in Sandy, on Tuesday, Nov. 3, 2020.

This semester I taught civil procedure, the rules of civil litigation in the United States, to first-year law students. Those rules include standards governing when a lawsuit is appropriate and when it is not.
Utah Sen. Mike Lee is making my job more difficult. He continues to argue on social media that President Donald Trump’s campaign has “every right” to challenge election results in court, as if that right is absolute. (”Lee continues to defend Trump’s questioning of election results,” Salt Lake Tribune, Nov. 24.)
Lee is wrong. The Trump campaign is entitled to file lawsuits that have a reasonable basis in law and fact. They do not have “every right” to file cases based on sheer speculation, or in the mere hope that something will turn up.
One rule I emphasize to civil procedure students is Rule 11 (which is similar in concept in federal courts, Utah courts and the courts of other states). Although lawyer conduct is regulated in several ways, including ethical rules adopted by each state bar, Rule 11 deals specifically with when a lawsuit can legitimately be filed.
Rule 11 requires attorneys to represent that a lawsuit is not being presented for an improper purpose. It also requires them to ensure they have a reasonable basis for believing the case is supported by existing law or “nonfrivolous” arguments to change the law, and that the lawsuit either has evidentiary support or is likely to do so after reasonable further investigation. A judge can sanction attorneys for violations of this rule.
These standards allow reasonable flexibility. No lawyer can be certain of prevailing on any legal claim. Nor do lawyers usually have all information necessary to prove their case at the beginning of the lawsuit. The rules also include a process known as “discovery” to allow lawyers to learn more information relevant to the case before it is tried or otherwise resolved.
But that flexibility is not a fishing license. Lawyers are held to an objective standard of care. That does not mean simply that the individual lawyer believes the case has merit. It means that a responsible attorney, after reasonable inquiry under the circumstances, would believe that the case can be supported by law and facts.
Rudy Giuliani may believe that the lawsuits he and colleagues filed have merit and serve legitimate purposes. That is not the appropriate standard. It is whether competent attorneys would believe so after reasonable legal research and factual investigation.

Apparently, the many attorneys who withdrew from Trump campaign lawsuits believed those cases lacked merit. (Legal pro tip: Lawyers who are being paid a lot of money typically do not withdraw unless they think something is fundamentally wrong with the case, or unless they realize belatedly that they have a conflict of interest.)
The federal judge who quickly dismissed the Trump campaign’s Pennsylvania lawsuit agreed: “This Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence,” U.S. District Judge Matthew Brann wrote.
Other Trump lawsuits have fared no better. Many have been dismissed or withdrawn.
The Utah Republican Party also issued a statement about alleged election fraud. They argued that the allegations “need to be thoroughly investigated, and if necessary, litigated.”
I would have added “if necessary and appropriate,” but at least they have the sequence right. Investigate first and litigate second, but only if warranted. Not the other way around.
My first-semester law students know that. As an attorney, Sen. Lee should as well.

Robert Adler

Robert W. Adler is a distinguished professor at the University of Utah’s S.J. Quinney College of Law.
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