Porter Wright Has Disgraced the Legal Profession by Unethically Abandoning Election Suit

By Ian Huyett Published on November 20, 2020

Militant progressives have long been allowed to terrorize all kinds of for-profit businesses into bowing to their will. Last week, however, this tactic became more dangerous than ever. An anti-Republican group has successfully deployed cancel culture against the justice system itself, pressuring a law firm into withdrawing from an election suit it brought on behalf of the Trump campaign and a Republican voter.

The withdrawal of that law firm, Porter Wright, has caused what might have been the Trump campaign’s most promising election lawsuit to suffer a catastrophic setback. This is especially troubling given the suit’s argument: that Pennsylvania election officials acted to dilute the votes of Republicans.

If those allegations happen to be true, it will now be very difficult for them to be remedied through the court system. This should be deeply troubling even if you personally believe that election malfeasance did not occur.

It goes without saying that, if Democratic voters had brought a lawsuit alleging election malfeasance, and a right-wing group like Gun Owners of America had bullied the Democrats’ lawyers into abandoning the case, we would never hear the end of it. These actions would rightly draw comparisons with the KKK and be decried as a quasi-terroristic manipulation of the election process.

But the unfortunate fact is that a column like this one will not change how bullies behave. There will always be those who attack lawyers for upholding the rule of law and defending controversial or unpopular clients or cases. What conservatives can influence is how the next law firm or other profit-driven entity responds to this kind of bullying.

With its panicked and hasty withdrawal, Porter Wright has sabotaged clients that it was duty-bound to protect. Conservatives must act in concert to discourage the kind of unethical behavior that Porter Wright exhibited.

Porter Wright’s November 9 lawsuit made an intriguing legal argument.

Before November 9th, the prospects of Trump’s election litigation looked largely dismal. While the President’s lawyers had filed many lawsuits, most of these suits — even if successful — could not have changed the outcome of the election in any state. But things looked up for the campaign when Porter Wright, a large law firm with a respected election law practice group, filed a polished 86-page complaint in Pennsylvania federal court.

The gist of Porter Wright’s argument was that Pennsylvania election officials constructed a system which would filter out as many Republican votes as possible while letting Democratic votes through. Pennsylvania did this in essentially two ways.

First, the suit claimed that Pennsylvania’s Secretary of State “excised nearly every element of … verifiability” from mail-in ballots, which were more likely to be from Democrats. In contrast, in-person ballots — which were more likely to be from Republicans — were subject to strict verifiability checks.

Secondly, the suit alleged that mail-in ballots were treated differently depending on whether they came from Democrat- or Republican-heavy counties. If voters in Democrat-heavy counties submitted legally defective ballots, these voters were contacted and given an opportunity to cure their ballots. In contrast, if voters in Republican-heavy counties submitted defective ballots, those votes were simply not counted.

The upshot is that — rather than actually manufacturing fake ballots — Pennsylvania created “an illegal two-tiered voting system” designed to dilute the votes of Republicans and tilt the election to Joe Biden. Pennsylvania officials therefore violated the Equal Protection Clause, which — as the Supreme Court said in Bush v. Gore — means that a state may not “by … disparate treatment, value one person’s vote over that of another.”

Importantly, Porter Wright did not just represent the Trump campaign. Another of the firm’s clients, David John Henry, was an ordinary voter in Lancaster County — a Republican county which voted for Trump. The complaint stated that, while many Democratic voters who submitted defective ballots will have their votes counted, “voters like Mr. Henry, who received no such opportunity, will not, as their votes were rejected as having been improperly cast and thus void.”

Porter Wright abandoned GOP voters out of cowardice, sabotaging their clients’ interests.

The day after Porter Wright’s suit was filed, anti-Republican group The Lincoln Project announced a $500,000 advertising campaign targeting Porter Wright. Begging the question against the lawsuit, The Lincoln Project accused the firm of “trying to overturn the will of the American people.” The campaign also attacked a much larger law firm — Jones Day — which represents the Pennsylvania GOP in a separate case.

The Lincoln Project is made up of members of the old GOP establishment who brought us such achievements as the War in Iraq. Its founders include little-known associates of George W. Bush, Dick Cheney and John McCain. The group’s main grievance against President Trump and the current GOP seems to be that Trump has abandoned the Bush-Cheney policy of spreading democracy in the Middle East through cluster bombs. Their present goal is to throw the White House and Senate to Democrats, thereby bringing the Republican Party to a permanent end.

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If the Republican Party can no longer be the party of Halliburton, the Lincoln Project thinks, it may as well be nihilistically burned to the ground to establish one-party Democratic control. The group evidently hopes — and not without reason — that Democrats will then embrace their foreign policy views and become the new party of permanent global war. It was to this end that The Lincoln Project launched a half-million-dollar cancel culture campaign targeting Porter Wright.

Of course, if Porter Wright’s lawsuit had been frivolous, this would have accomplished nothing: the lawsuit would have floundered and died of its own accord, to Trump’s embarrassment. Yet The Lincoln Project apparently believed that the suit might actually uncover systematic malfeasance — and was determined to stop it.

The other targeted law firm, Jones Day, immediately released a statement firmly stating that “Jones Day will not withdraw” from representing the Pennsylvania GOP. In contrast, Porter Wright could not move quickly enough to betray its clients. Only three days after filing their 86-page initial complaint, Porter Wright frantically withdrew from the case and ran screaming from the room.

This immediately turned the litigation into a circus. The firm had dumped the suit into the lap of Linda Kerns, a Pennsylvania solo practitioner who had been assisting them, and two Texas attorneys. These three attorneys probably recognized, correctly, that this complex litigation could only be competently handled by a sizeable firm. This Monday, all three moved to withdraw.

Another Pennsylvania lawyer then gamely stepped up to the challenge, finding himself with less than 24 hours to prepare for an oral argument on Tuesday. In its paroxysm of cowardice, Porter Wright may have sabotaged the interests of its clients beyond repair.

Porter Wright has undermined the integrity of the legal system and the legal profession.

Porter Wright’s actions are disgraceful in more ways than one. For one thing, their withdrawal likely violated ethical rules that govern the practice of law. The Trump campaign’s public statements make clear that the Trump campaign did not fire Porter Wright: they withdrew because of the political pressure. One wonders if anyone even bothered to ask David John Henry, the voter, what he thought of the situation.

Since Porter Wright’s clients did not fire them, this means they were required to comply with Pennsylvania Rule 1.16(d). This rule states that when a lawyer terminates representation, the lawyer “shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client [and] allowing time for employment of other counsel.”

Legal ethics do not necessarily prohibit lawyers from being cowards, but they do prohibit lawyers from acting with selfish disregard for their clients. If Porter Wright wanted to flee while complying with its ethical duties, it needed to give its clients notice and time to retain a new law firm. Instead, the firm scampered three days into the suit, foisting the case onto a solo practitioner. If Porter Wright had wanted to intentionally flout these ethical obligations, it is hard to imagine what more they could have done.

But Porter Wright has not just harmed GOP voters. With its capitulation to cancel culture, Porter Wright has undermined a cornerstone principle of legal practice, codified as ABA Model Rule 1.2(b). This rule, which is on the books in Pennsylvania and most other states, says that “A lawyer’s representation of a client … does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”

By withdrawing in the face of political pressure, Porter Wright has legitimized the idea that to represent the rights of GOP voters is to affirm GOP policies. If a law firm does not want to be identified with conservative policy views, they have signaled, then progressives can expect the firm to abandon conservative clients.

The principle behind 1.2(b) is a significant part of what makes the rule of law possible in America. Because criminal defense attorneys can represent murderers, all of our rights are safeguarded. Because civil liberties attorneys can represent neo-Nazis, as the ACLU once did, all of our free speech rights are protected. But if even the President’s campaign cannot obtain competent election representation, everyone’s rights are in jeopardy.

Porter Wright has helped to create an America where — if a lawyer is going to represent a controversial client — he can be expected to explicitly endorse that client or withdraw from the case. By abandoning Republican voters in this highly-public litigation, Porter Wright has undermined the integrity of the legal system and soiled the entire profession in the filth of its cowardice.

Porter Wright should face a campaign of public opprobrium for betraying GOP voters.

No Republican should do business with Porter Wright again. While this is a difficult truth for conservatives, the fact is that the militant left cannot be allowed to monopolize the incentive structure that will motivate the next Porter Wright. If conservatives do not respond to bullying with a defensive and counteracting pressure on those who bow down before it, then they will be condemning themselves to political exile and disenfranchisement.

If only one faction is willing to call for and engage in boycotts, that faction will have dictatorial control over all for-profit businesses. For example, progressives were able to bully Chick-fil-A by continually attacking the company over its donations to Christian charities like The Salvation Army. But when Chick-fil-A compliantly ended donations to these groups “to be clear about our message” — effectively helping to stigmatize these groups — few conservatives were interested in responding with a boycott of their own. This means that Chick-fil-A has strong incentives to obey the militant cultural left while ignoring conservatives.

In the same way, if Republicans continue to hire Porter Wright, they will be showing other election lawyers that it makes good financial sense to grovel before the demands of the militant left. Any Republican candidates who hire the firm will therefore be helping to create a world in which conservatives cannot obtain competent election representation. This means that election fraud and other malfeasance is unlikely to be detected and remedied if it is perpetrated by progressives against their opponents.

The Lincoln Project’s planned advertising campaign against Porter Wright had a half-million dollar budget. Ideally, then, what is needed is for a Republican donor to put up an equivalent donation to a campaign criticizing Porter Wright for abandoning and undermining its clients. Additionally, lawyers and legal commentators should write and share articles, blog posts and tweets which hold up Porter Wright to appropriate moral scorn for sacrificing its clients, and the integrity of the profession’s ethical rules, on the altar of its own craven wimpiness.

I am not suggesting that conservatives should engage in the same kind of cancel culture employed by the left, shaming people for expressing opposing viewpoints. Yet, unless conservatives are going to surrender entirely, they must aggressively cancel the power of the cancellers. With progressive cancel culture now putting its hands on the very scales of justice, it could not be more urgent that they do so.

 

Ian Huyett is a litigation attorney and an editor at Staseos. He has published several academic articles on law and religion, including most recently How to Overturn Employment Division v. Smith: A Historical Approach with Regent University Law Review.

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