I recently disagreed with North Carolina Law Professor and CNN Legal Analyst Michael Gerhardt, who declared that the entire Trump defense team would face bar charges for their defense of the President. No such bar charges have been filed but the Miami-Dade Democratic Party has filed a frivolous bar complaint against Florida Rep. Matt Gaetz (R) for his role in the storming a secure congressional facility during the closed-door hearings held in the impeachment inquiry. The complaint in my view is utterly without merit and would create a dangerous precedent for bar associations to use their authority to regulate or punish the actions of lawyers in the capacity as members of Congress.
In October, roughly two dozen House GOP members stormed into the Sensitive Compartmented Information Facility (SCIF) interrupting the deposition of Deputy Assistant Secretary of Defense Laura Cooper. The scheme was chaotic as Gaetz and the others were told to leave since they are not members of the Committee.
There are ample reasons to object to the conduct, including the potential for undermining the integrity of a SCIF which handles classified material. However, according to the Miami New Times, the complaint alleges that Gaetz’s conduct as a member of Congress should result in his discipline as a lawyer because “Gaetz is not a member of any of the House Intelligence, Foreign Affairs, or Oversight Committees, and he knew or should have known that he was not permitted to attend any of the closed-door depositions being held by these committees.” Since the proceedings were meant to gather testimony, the Democratic party alleges that it was akin to stopping a deposition as an attorney: “[t]hese instances were in direct violation of the operative rules contained in the 116th Congress Regulations for Use of Deposition authority.”
The premise is inherently flawed. Gaetz, rightly or wrongly, was acting as a political representative against what he viewed as an improper shielding of witnesses and evidence by the majority. A myriad of actions could be converted into bar complaints under this loose suggested standard. For example, Chairman Adam Schiff, who is also a lawyer, was accused of misrepresenting facts and preventing full examination of witnesses. To allow such conversion of political issues would be to invite a slippery slope of politically motivated charges before bar committees.
The Democratic Party seemed to go out of its way to telegraph that this is a raw political exercise. It declared “[b]oth intrusions are improper, unethical, and were meant only to feed Gaetz’s unjustifiably large ego and penchant for grandstanding.” To further high-light the use of the bar system for political purposes, Miami-Dade Democratic Party chair Steve Simeonidis also took a shot at Attorney General Bill Barr in declaring Republican Attorney General Bill Barr isn’t going to hold a member of his own party responsible. So we must appeal to our state’s institutions to restrain this rogue lawyer.” It is an internally conflicted argument. They accuse Gaetz of misusing the congressional process of political purposes by misusing the bar process for political purposes.
The real question is not whether this is a legitimate ethical charge but whether the bar will make any effort to deter future such filings by taking counsel for the Democratic Party to task for the filing. Various ethics opinions warn that threatening or declaring bar violations can be unethical, particularly when (if true) you are under an obligation to actually report such conduct. If there is a lack of a good faith basis or support, it can violate professional standards.
Gaetz has admitted to improper conduct in connection to congressional proceedings. An ethics complaint was filed against Gaetz for his highly improper tweet the night before tampering with then-witness Michael Cohen testified in February 2019.
The bar correctly found no violation but Gaetz ultimately apologized for the appalling tweet.
State bars should not be used for political demonstrations or retaliations. The Democratic Party undermines not just this important process but its own credibility in the filing of such frivolous complaints.