Brian Sheppard (Seton Hall University School of Law) has posted The Ethics Resistance on SSRN. Here is the abstract:
Legal ethics complaints have been filed against several of the high-ranking lawyers in the Trump Administration. While individual complaints have caught the public eye, the collective movement to use legal ethics to resist Trumpism has escaped attention. This is not altogether surprising: legal ethics rules have not historically been an attractive tool for political change. Perhaps, desperate times have called for desperate measures.
This “Ethics Resistance” will face significant opposing forces. Legal ethics complaints seldom result in punishment. Further, the agencies that are asked to investigate these high-profile and controversial matters will not be eager to leave their comfort zone; they are accustomed to complaints from clients who are unhappy with their lawyers over straightforward matters like unreturned phone calls or high fees. There will also be loud dissenting voices from those who will see the movement as the weaponization of a tool designed for the modest task of lawyer self-governance. Finally, the complaints will have to navigate between powerful constitutional protections on lawyer speech and federal power.
But we should not dismiss this movement simply because it is unusual or challenging. The wisdom of the Ethics Resistance can only be judged after we understand its distinctive qualities and consider how they further or hinder our legal, institutional, and pragmatic interests.
In this Article, I undertake that analysis and conclude that the movement has the capacity to be legally permissible, institutionally sound, and prudent. I further offer a list of best practices for future complaints.