Thought I would start a thread on this. It’s Trump-adjacent, since Eastman is facing disbarment over the legal advice that he gave concerning attempts to delay the certification vote.
Interesting statement in his testimony today. He was asked if there was some sort of plan to have the Senate pres pro tem substitute for Pence on the vote count. His reply:
” Eastman said discussions on that topic were protected by attorney-client privilege. When pressed about which client of his he was referring to, Eastman replied: President Trump.”
The Constitution requires the vice president — who also serves as the president of the Senate — to preside over the counting of electoral votes to certify the presidential election. Historically, however, this job has at times fallen to the “Senate president pro tempore,” typically the most senior senator in the majority.
When has that ever happened when the Office of the Vice-President wasn’t vacant?
One example is in 1969 when Vice President Hubert Humphrey decided to attend the funeral of the first United Nations secretary-general instead. Richard Russell, Senate president pro tempore, announced that Richard Nixon had won (over Hubert Humphrey as a matter of fact). Otherwise Hubert Humphrey would have had to announce that he had lost (like Al Gore had to do).
Found an opinion piece in Salon from January of this year, written by an emeritus professor of criminology at Eastern Michigan U. He gives some interesting stats on the fates of Trump’s lawyers:
Between November 2020 and this month [January 2023], at least 13 attorneys have severed their working relationships with Trump, either resigning or being fired due to some version of “irreconcilable differences.” There are also several attorneys who were never officially retained by Trump, and never paid by him, but who nonetheless acted in his interests, including Sidney Powell, Rudy Giuliani and quite likely John Eastman. As of March 2023, 17 current or former Trump lawyers had been sanctioned by various courts, mostly because of their involvement in dubious litigation challenging the 2020 election.
Then there’s the list of Trump lawyers who have had to hire lawyers of their own to fend off the consequences of their work for the former president. Most recently, Trump attorney Christina Bobb retained a defense attorney because of her entanglement in the Mar-a-Lago classified documents case. (In fairness, it seems likely that Bobb was misled by Trump into signing a false declaration that all relevant documents had been returned to the FBI.)
Not directly relevant to the disbarment proceedings, but the Supreme Court has declined leave to appeal from the court order that Eastman and Trump were likely collaborating on an illegal attempt to subvert the Constitution. The ruling was made in the federal courts, upholding a subpoena from the J6 Committee, and in doing so allowed access to materials that Eastman claimed were covered by attorney-client privilege.
Things just got worse for Eastman. The judge on the disbarment proceedings made a preliminary finding the Eastman breached his ethical duties. The California Bar is now moving to the next step, arguing that the breach was aggravated, which sounds like is a necessary finding for disbarment.
What impact this has on the Georgia prosecution is a cause of speculation. Eastman says he’s more convinced than ever that the election was stolen.
Because to admit otherwise would be for him to admit he is a complete and utter moron, who was wrong about everything. And that would shatter his ego into tiny little shards.
Question for the lawyers: if an attorney is disbarred in one state, what effect, if any, does this have on current practice, or potential future practice, in other states?
Is disbarment reciprocal? Automatic? Or does it trigger a review that may or may not remove the attorney’s ability to practice in other states?
Does it depend on the type and/or scale of misconduct? I can imagine, say, a felony drunk driving conviction being seen as not having a material effect on one’s ability to practice law and therefore not of particular interest to other state bar associations, whereas fraudulent billing of clients would be directly relevant to one’s professional ethics regardless of jurisdiction.
Basically, let’s say California pulls the trigger and ends Eastman’s legal career in that state. Can he just take the bar exam in Mississippi and hang a new shingle?
IANAL, but anecdotally, I have heard of state bar associations considering such factors as “moral turpitude.” I can’t say whether being disbarred anywhere is something that falls into that particular basket.
It wouldn’t shock me to learn that it does, though.
In the portion of the article you’ve quoted, it states that Trump was never a client of Eastman’s, but in the article you quoted in your OP, Eastman invoked attorney–client privilege with respect to Trump. Given that Trump wasn’t his client, does that privilege really apply? Or did Trump become Eastman’s client some time between when the two articles were published?
If a lawyer is admitted in more than one state, a disbarment in one state will almost certainly cause a disbarment in the other states. I don’t know if it’s automatic, but it’s close. I see a lot of notices that so and so was disbarred, usually without a fight, due to disbarment findings in another state.
If you’re only admitted in one state and get disbarred, you’re done. You can’t practice in your state, and you can’t appear pro hac vice in other states. The pro hac application process always requires a Certificate of Good Standing from your home bar.
You can ask to be reinstated after some time has passed. I assume it sometimes works, but I’ve never seen a successful effort.
I think it may just be murky, given how weird things were following the 2020 election.
However, it may also be that “client” is being used in two different ways in the two articles.
One definition of “client” is that the lawyer is on a clear retainer, being paid by the individual.
However, it’s possible to have attorney-client privilege created without any retainer agreement or any payment of money. “Client” in this sense means that the person is seeking legal advice from the lawyer, and the lawyer voluntarily gives legal advice, knowing that the individual may rely on that advice. That can be sufficient to create lawyer-client privilege.
Which is why lawyers have to be careful about cocktail party advice, or message board advice.
It may be that Eastman was never a formal lawyer for Trump, with a retainer agreement and an expectation he would be paid. (Yeah, right.)
But if Eastman was preparing legal memos on election related stuff, like the alternate electors, and passing it along to Team Trump, knowing that they might rely on that legal advice, that could potentially create a lawyer-client relationship, and privilege may attach.
The issue is heavily fact-specific, in the absence of a formal retainer agreement, and also depends on the law of each jurisdiction governing the legal profession.
And no, none of this is legal advice! (It is part of our professional standards in my jurisdiction to contribute to public education about the legal system, in general terms.)
I’m sure somewhere there’s a Republican billionaire ready to pony up to endow the “John Eastman Chair of Constitutional Coup Studies” at some law school somewhere, with it’s eponymous professor as its first occupant.
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