Fifteen liberal law professors filed an ethics complaint with the DC bar, alleging that Kellyanne Conway violated Rule 8.4(c) of the D.C. Rules of Professional Responsibility by engaging in “dishonesty, fraud, deceit, or misrepresentation.” As RNLA member Maya Noronha explained on the Fed Soc Blog, this presents a serious misuse of the ethics rules and implicates the First Amendment:
Many legal ethics professors, such as Jack Marshall, Jonathan Turley and Steven Lubet, have said these complaints against Conway are meritless. Exaggerations, misstatements, or gaffes occur on political talk shows. But do they constitute professional misconduct comparable to such actions like embezzlement, blackmail, fraud, and bribery, acts that undoubtedly violate the rule? Bar disciplinary rules are in place to ensure clients are not injured by misconduct, to deter future misconduct, and to promote a good reputation for the legal profession. It’s not quite clear how Conway, who has not practiced law since 1995 and does not even have an active license in D.C., is causing “shame” to the legal profession, as the bar complaint alleges.
Bar disciplinary committees have the authority to institute such sanctions as reprimand, probation, suspension, and disbarment, but bar complaints can have other implications, even if disciplinary committees never reviews the complaints. Bar complaints can be used as a tactic to tarnish the reputation and even silence individual lawyers. Meanwhile, the people lodging the complaint can get interviews and free press.
But the First Amendment concerns are even more serious. Bar complaints inviting disciplinary committees to take a position on political commentary invites politically motivated bar discipline and discourages lawyers from speaking about controversial political issues. Several decades ago, Justice Black warned that “the rights of a lawyer…to practice cannot be left to the mercies of his prospective or present competitors.”When even a liberal Democrat law professor writes a scathing article in Slate explaining that the complaint is "dangerously misguided," it is clear that there is no merit to this politically motivated complaint.
This is just one example of a disturbing trend of applying different ethical standards to conservative and liberal lawyers and using the bar disciplinary system as a political tool. With the ABA trying to extend the reach of bar discipline into lawyers' social activities, this trend is even more disturbing.