Saturday, September 25, 2021

Bring In The Clowns

 I stepped into this quagmire and quickly sank up to my knees.  The problem here is not what has happened, but the reporting on what has happened.  Let me show you what I mean.

Ken Paxton is being investigated for ethics violations by the State Bar of Texas, the entity that licenses attorneys under the auspices of the Texas Supreme Court.  So it's not a state agency, but it acts like one.  Anyway, this is what Paxton says about the history of the complaints:

Today Attorney General Paxton filed an objection to the Texas State Bar’s appointment of a one-sided and partisan “Investigatory Hearing Panel” to investigate him and his staff for defending the rights of the State of Texas by challenging the constitutionality of the 2020 election procedures in four states. Initially, the State Bar dismissed all ethics complaints related to that lawsuit, Texas v. Pennsylvania, et al. Yet months later, higher-ranking Bar officials ordered their staff to reinstate select complaints against Attorney General Paxton and his staff. In doing so, the State Bar has stepped far outside the limited administrative authority it has to regulate the practice of law and protect clients, and is attempting instead to control the sovereign actions taken by the State of Texas through the duly-elected Attorney General.

The State Bar makes no attempt to hide its partisan behavior. It ignored its own rules to impose an Investigatory Panel comprised of six unelected, left-leaning lawyers and non-lawyer activists strategically drawn from Travis County. As a group, this panel has donated thousands of dollars to federal, state, and local Democrat candidates, voted consistently in Democrat primaries for over a decade, and several have maintained highly partisan social media accounts.

I'm just gonna say there's a rat-gnawed skeleton of some facts dressed in those rags (and this is an official statement from the AG of Texas!).  But it leaves out pertinent facts, like the fact that the original complaint was filed by "a group of four past Texas State Bar presidents, state bar members and Texas legal ethics experts."  Some of those state bar members may be as liberal as your congenial host, but Texas State Bar Presidents are not exactly known as the sons of Kunstler.  Nor are Texas legal ethics experts usually found atop the barricades cheering the people on to revolution.  But the problem is, this complaint (31 pages worth), filed mostly with regard to Texas v. Pennsylvania (the crackpot scheme to challenge the vote count in PA by TX, et al.), was filed in July.  Paxton says it was dismissed.  I can't find anything that says he's wrong about that. But I won't, because the State Bar doesn't reveal this kind of information until the matter is resolved, and even then they seldom say much.

Paxton had 30 days to respond to that complaint, which was filed on or about July 21, 2021 (I'm going by dates on news reports.  They don't provide the most accurate details, despite their supposed fealty to 'the facts.'  That's part of my complaint here.)  I found this article, dated August 30, 2021:

The State Bar of Texas has agreed to investigate an ethics complaint filed against Texas Attorney General Ken Paxton (R).

In a letter, the Office of Chief Disciplinary Counsel of the State Bar of Texas told complainant Gershon Gary Ratner, co-founder of Lawyers Defending American Democracy, that his late July ethics complaint–filed along with 15 other Lone Star State attorneys–contained facts alleging that Paxton had engaged in professional misconduct.

Which seems to indicate the State Bar was starting formal proceedings. That starts a clock which gives Paxton 30 days to respond from the day he receives the complaint, forwarded on to him by the State Bar:

The letter notes that the Republican attorney general will, as part of the formal process, be provided a copy of the 31-page complaint, be “directed to file a response, and provide [Ratner] a copy of the response within thirty (30) days of receiving notice of the Complaint.” 

Yeah, we're still well within that 30 day timeframe.  The press release quoted above came out on September 24.  It links to Paxton's response to the Bar, which is full of ad hominem attacks on the Complainants:

What is special about these four Complaints—or these four Complainants—that necessitates a response? Certainly it is not their specificity or the clarity of legal analysis. It is not even clear from the substance of their complaints that the complainants have read what Respondents filed. And, as discussed infra, despite the Complaints’ conclusory and unsupported assertions, there is nothing frivolous, fraudulent, or un-candid about Texas’s filings. They are well- grounded and defensible—albeit unsuccessful—court filings.

I'd expect that last sentence, although it's a very weak presentation of an argument that should be your strongest defense in this kind of case.  The slap at the "clarity of [their] legal analysis," however, is completely gratuitous and unbecoming of professional proceedings.  Then again, Paxton is a pig, even if you put lipstick on him.

He asserts these complaints have been dismissed, but I still can't find any details on when that happened, or why the complaints were reinstated.  This, by the way, is basically his defense:

As important as that point is—or should be, in the typical Bar disciplinary investigation response—it is the smaller issue here. The larger issue is, rather, the role of the State Bar in its oversight of the legal profession. Will it continue to defend even lawyers who support unpopular or controversial causes, or clients? Will it impartially apply and enforce the Disciplinary Rules in a politically neutral manner? Or will it, instead, depart from the rule of law and yield to the partisan clamor of non-client non-parties whose only apparent interest is to prolong the political fight after the court case has concluded? 

Which is pretty much the right defense to this kind of complaint; but Paxton does himself no favors insulting former State Bar Presidents; and his defense is actually fairly weak.  Yes, lawyers should represent unpopular clients and their causes, but the state of Texas is Paxton's client, and the cause was not just 'unpopular' but wholly untenable under law.  Sorta like this one:

Sidney Powell got crosswise with a federal judge not because the cause or client she represented was unpopular, but because the case she presented to the court had no legal foundation (nor a factual one, which destroys any hope of a legal one; facts come first) at all.  In the same vein, her suit against Dominion is a farce, a farrago, a grand waste of judicial resources.

"Powell, in a series of counterclaims filed late Friday against Dominion Voting Systems Inc., claimed the company's earlier $1.3 billion defamation suit against her was a 'ludicrous' abuse of the legal system intended to intimidate her for speaking out," Bloomberg's Erik Larson reported.

In her filing, Powell wrote that Dominion's lawsuit against her was a stab at "diverting attention from the failings of its election equipment, trying to change the 'narrative' that was exposing Dominion's serious flaws and wrongdoing, and avoiding post-election inquiry into voting irregularities in the 2020 election."

The problem here is not the facts so much as the legal analysis.  Dominion's lawsuit is hardly a "ludicrous" abuse of the legal system.  The company has a legitimate property interest in its business reputation, and Powell slandered that with no facts to support her claims at all.  She may still insist her facts are true and can be trusted, but that doesn't meant the court has to agree.  Nothing she alleges Dominion was trying to divert us from seeing has been seen, because it doesn't exist.  It's a tissue of lies.  The abuse of the legal system is this countersuit, which is no different than the suit, as a legal matter, for which she has already been sanctioned.

And the difference between that suit, this counterclaim, and Texas v. Pennsylvania?  On the face of it, I can't see one.  None of them advance legitimate interests, rely on appropriate or even arguable applications of the law, and they certainly bring disrepute and calumny on the legal profession.  Powell's counterclaim is as "willfully bogus" as Paxton's suit against Pennsylvania.

It seems to me they are two peas in a pod, and should be treated as such.  Besides, if the Federal court can sanction Powell on these issues, the State Bar can certainly sanction Paxton.*  Indeed, I suspect that's precisely why the State Bar re-considered the complaint against Paxton, and reactivated it. By his argument responding to the Complaint, he says no lawyer can ever be reprimanded for filing suit under the Texas disciplinary rules, because the law is too complex and never static (his terms, not mine).  It's the legal equivalent of throwing a lot of sand in the air and hoping some of it gets in the judge's eyes.  My favorite is the argument that the Texas Attorney General, although licensed by the State Supreme Court and regulated by the State Bar, is not subject to the State Bar because "separation of powers."  King's X, in other words.

Yeah, this is gonna be a clown show.  Sidney Powell should be called to perform in the center ring, too.k


*Paxton's response tries to swat away specifics of the complaint he says is not specific enough, mostly on the grounds that lawyers can file pleadings with vague and general allegations of fact and law, and then try to find evidence in discovery that can be presented at trial to support those allegations.  This is, indeed, the way lawsuits work.  But that argument didn't save Sidney Powell from sanctions, and it shouldn't save Paxton here.  Not, at least, without a hearing to determine what facts Paxton had, and what legal reasons he had for his absurd lawsuit.

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