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Alan Dershowitz Can't Be Forced To Follow Normal Lawyer Rules. Do You Kids Even Know Who He Is?
Is that how law works now? Hmmm ....
We regret to inform you that Alan Dershowitz is still talking . Six weeks ago, a federal judge in Arizona imposed sanctions on failed Republican gubernatorial nominee Kari Lake's legal team, which included Professor Underpants. And since then he has not shut up about how it is no fair and not allowed because he is old, and cranky, and can't be bothered to, like, read documents he signs his name to.
The trouble started back in April, when Pillow Huffing CEO Mike Lindell dispatched his legal team of Andrew Parker, Kurt Olsen, and Dersh to “sue all the machines.” The plan was to sue in Arizona, claiming that electronic voting machines were so unreliable as to be unconstitutional, getting a judge to block their use in the August 2 primary and forcing the state to use all paper ballots, counted by hand. After which, they'd take the decision all the way up to the Supreme Court, and usher in the prophesied utopia.
The first problem was that Arizona already uses paper ballots, so the relief they were asking for was irrelevant. Second, the proof of concept they cited was the hand recount by the Cyber Ninjas, aka the Arizona Fraudit , which took hundreds of people five months. So by their own admission, under their plan the results of the primary wouldn't be known until sometime around the time the winner of the general election was supposed to be sworn in. And third, the plaintiffs alleged that the machines were untested, which was simply false — they went through extensive public validation both before and after the election, as well as a partial hand recount to verify the accuracy.
US District Judge John Tuchi was somewhere between livid and incandescent with rage at having to field this bullshit. In August, he granted the defendants' motion to dismiss the case, and in December he flamed the lawyers who filed it in a sanctions order requiring them to pay Maricopa County $141,690.00 in attorneys’ fees:
As discussed herein, any objectively reasonable investigation of this case would have led to publicly available and widely circulated information contradicting Plaintiffs’ allegations and undercutting their claims. Thus, Plaintiffs either failed to conduct the reasonable factual and legal inquiry required under Rule 11, or they conducted such an inquiry and filed this lawsuit anyway. Either way, no reasonable attorney, after conducting an objectively reasonable inquiry into the facts and law, would have found the complaint to be well-founded.
At which point Dershowitz lost his shit, filing a show cause motion demanding that Maricopa County come in and explain why he should be sanctioned along with the other attorneys who put their names on the complaint. Dershowitz, who is represented here by attorney Jack Wilenchik, one of the architects of the fraudulent electors scheme , claims that he's Mike Lindell's constitutional consultant, and had nothing to do with the rest of the complaint.
In an affidavit accompanying the motion, he complained that he should not be held to normal standards of professional conduct because he's 84, sickly, and currently suffering from COVID:
I was not retained to participate in any investigation regarding the underlying factual basis for the complaint. I did not believe that agreeing to be an “of counsel” legal consultant places any obligation on me to evaluate factual allegations. If that were the case, I could never be a legal or constitutional consultant because at my age, and because I do not have the resources or energy to do anything but provide my legal and constitutional expertise. In my nearly 60 years as a lawyer, I have never been sanctioned, disciplined or subjected to a bar complaint. I do not believe that I violated any ethical rules in this case. I taught legal ethics for 25 years and would never knowingly violate any ethical rule. If I inadvertently violated any Arizona rule, I apologize and will not do it again.
He also implied that his co-counsel inappropriately signed his name.
Attorneys for Maricopa County responded that they were in no position to know what Dershowitz did here, although he did enter an appearance and then force them to reschedule a hearing so that he could attend virtually, as an attorney of record. They also point out that the time to argue that he didn't deserve to be sanctioned was in August when they first moved for sanctions, not months later after the court granted the motion. And not for nothing, but saying you're an attorney who failed to conduct the most basic due diligence on a case with your name on it is a very bad look .
To which Dersh responds this week, by repeating all of the above whining, and adding that the purpose of Rule 11 sanctions is to deter bad behavior, and he promises never to do it again, so no harm no foul, right?
In cases such as this, where no intentional misconduct can be found on the part of Mr. Dershowitz, who has practiced law for many years without any sanction or ethics violation, an award of fees against Mr. Dershowitz would serve only to deter well-intentioned legal scholars from being associated with litigation in any way, or from even listening in to court proceeding(s) or phone calls, which ultimately will not result in a salutary effect on the legal system. Mr. Dershowitz already acknowledges that if his approach to appearing as “of counsel” in this matter was inconsistent with Arizona’s rules or procedure, then he will not do so again.
Of course, some people might argue that renting out your reputation as a constitutional scholar should not obviate your professional responsibilities as a lawyer, no not even if you say you were just "consulting" or "of counsel." But we're just a mommyblog, so don't take it from us.
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