Thursday, March 09, 2023

Oh, What A Tangled Web We Weave

Wait, let's be clear about what Jenna is NOW saying: In releveant part, she says:

As has become sadly typical, the opposition-controlled media is intentionally twisting the truth, conflating the full RPC standard with the actual stipulation. The standard reads, “dishonesty, fraud, deceit, OR misrepresentation.”

The Colorado bar counsel and my counsel concluded that it was best to resolve the bar complaints by agreeing to a public censure.

Alright, hold onto that, because this is actually why she was censured (I'm really not sure Ellis is smart enough to understand this, to be perfectly honest):

The presiding disciplinary judge in the case, Byron Large, only censured Ellis in response to her admitted lies, because she didn’t tell those lies in her function as lawyer.... She didn’t stipulate to making these false claims to Trump or as the attorney of record in any of the lawsuits that Trump filed, and so, according to a standard adopted by the CO Supreme Court, she should only be censured, not disbarred.
Although ABA Standard 7.2 seemingly fits the fact pattern at hand, the Colorado Supreme Court’s opinion in In re Rosen counsels against relying on that Standard outside the context of lawyers’ misrepresentations while executing their professional duties. Rosen further counsels against imposing a sanction in the gap left between ABA Standards 5.11(b) and 5.13. Indeed, the Rosen court addressed at length the appropriate Standards to apply when faced with instances of lawyer misrepresentation:
Unless deceit or misrepresentation is directed toward a client, see ABA Standard 4.6, a tribunal, see ABA Standard 6.1, or the legal profession itself (as, for example, by making false representations in applying for admission to the bar), see ABA Standard 7.0, it is considered by the ABA Standards to be the violation of a duty owed to the public, see ABA Standard 5.0. As the violation of a duty owed to the public (as distinguished from a client, a court, or the profession), even conduct involving dishonesty, fraud, deceit, or misrepresentation, as long as it falls short of actual criminality or comparable intentional conduct seriously adversely reflecting on one’s fitness to practice law, should generally be sanctioned only by reprimand, or censure. [emphasis original; citations omitted]

So long as Ellis is not found to have committed a crime with her lies, she can keep her law license.

Put a pin in that while I go to the court order and point out, in brief, what Ellis agreed to:

Respondent and the People agree that Respondent made ten misrepresentations on Twitter and to nationally televised audiences in her capacity as personal counsel to the then-President of the United States and as counsel for his reelection campaign. The parties agree that Respondent made these statements, which violated Colo. RPC 8.4(c), with at least a reckless state of mind. The parties agree that Respondent was not counsel of record in any lawsuits challenging the 2020 election results. The parties agree that Respondent, through her conduct, undermined the American public’s confidence in the presidential election, violating her duty of candor to the public. Finally, the parties agree that two aggravators apply—Respondent had a selfish motive and she engaged in a pattern of misconduct—while one factor, her lack of prior discipline, mitigates her misconduct.
This is what Ellis agreed to in order to get this censure entered.  It's consistent with the analysis by emptywheel, above.  I will say the law does distinguish between misrepresentation and fraud; but the distinction is in the intent.  It's not a distinction between making a false statement and intentionally making a false statement; at leaset no in this case.  As the Court found, Ellis acted with "at least a reckless state of mind," but intent was not a necessary element of the agreement to accept censure.  In fact, it's a distinction without a difference:

The parties stipulate that Respondent acted with a mental state that was “at least reckless.” Stip. ¶ 13(b). For disciplinary purposes, recklessness is treated as equivalent to a knowing state of mind, with a limited exception not applicable here. See Colo. RPC 1.0 cmt. 7A; People v. Small, 962 P.2d 258, 260 (Colo. 1998).

As I said:  Ellis either doesn't understand that, or doesn't want to understand that.

So what did the Court agree to uphold in the agreement between Ellis and the Colorado Bar?

The parties agree that Respondent, through her conduct, undermined the American public’s confidence in the presidential election, violating her duty of candor to the public. Finally, the parties agree that two aggravators apply—Respondent had a selfish motive and she engaged in a pattern of misconduct—while one factor, her lack of prior discipline, mitigates her misconduct.

Funny Ellis doesn't highlight that in her tweet, since she agreed to it.

Why didn't the Court disbar Ellis?  Well, in a nutshell, because her misrepesentations weren't to a client, a tribunal, or the legal profession itself.  Which is the part emptywheel quoted, above. So censure was the appropriate punishment.

Personally, I think her fitness to practice law is shown by her public stupidity; but that's not quite enough, either.  I will say that if I was ever censured by the State Bar of Texas I wouldn't think of myself as "remaining in good standing" with the Bar, even though I would still have a license to practice law.

Long story short: she's lying.  Again. And she's really not very good at it.

No, not really. As the Court opinion makes clear, that was never really in threat. This is just more of that "lock 'em up!" shit that I despise. In an earlier time the cry could be "Hangin's too good for 'em!" That the sentiment isn't expressed that graphically doesn't make it any less mindless, and mindless animosity is always offensive. Not unlike Ellis's response to Sen. McConnell's fall. Don't be like that. It's unbecoming, at least.
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