Bar Disciplinary Proceedings (Dubitante)

Some people are angry at John Eastman for the advice he gave before January 6th, 2021. Some people are angry at Adam Liptak for writing an article that included leaked Supreme Court memos. Some people will be angry at Todd Blanche for indicting the Southern Poverty Law Center. The solution being proposed in all three cases is the same: Sic the bar on them!

I have strong reservations about this. First, there is a significant chilling effect on lawyers who might express unpopular views or take unpopular actions. Next, I doubt that state bar disciplinary committees have the capacity to adjudicate such claims fairly. Yes, there is judicial review, but there is a blue state/red state dynamic that raises concerns. Third, I am skeptical that state entities should be indirectly regulating the conduct of federal officials or the national press in this manner. Fourth, the ethical standards that are the source of the bar regulation were not designed for the sorts of questions contemplated by these cases.

That said, I’m not sure the Court will be interested in John Eastman’s forthcoming certiorari petition. A grant would require them to talk about Jan 6th, 2021, which is probably something they want to avoid.

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