Whatever anyone makes of the Brett Kavanaugh hearings, one sub-plot that should be of interest to lawyers concerns attorney Michael Avenatti’s statements and allegations pertaining to Kavanaugh. (Some of these questions have been addressed very literally as I wrote this post, but they are still worth a look.)
Avenatti’s public involvement with Kavanaugh started this Sunday night with a cryptic Tweet stating he represents “a woman with credible information regarding Judge Kavanaugh and Mark Judge.” Avenatti also told a CBS reporter that “When America hears from my client, they, like me, will find her very credible. We don’t traffic in nonsense and rumor.”
Avanatti then made a series of statements about Kavanaugh, which I won’t repeat here.
UNLV Law Professor Ben Edwards was among the first to point out the professional and ethical implications of Avanatti’s factual statements about Kavanaugn, who is currently a federal appellate judge. “My expectation is that [Avenatti] will either produce backup for this soon or face discipline,” Edwards said. He also put it more bluntly: “This isn’t the kind of allegation a lawyer who values her law license would make lightly.”
Every lawyer in the US is subject to the ethics rules followed by state bars in which he or she is admitted. Although these rules differ in some respects, they all restrict what lawyers can say about judges in the interest of “maintaining the integrity of the profession,” or something along these lines.
Avanatti is barred in California, and the California bar rules would govern any ethics claim involving Avenatti. But the “model” American Bar Association Rules are considered persuasive authority. Rule 8.2 of the ABA Model Rules of Professional Conduct state that:
…a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the…integrity of a judge…or of a candidate for election or appointment to judicial or legal office.
These restrictions serve an important purpose. As the ABA comment on Rule 8.2 states:
…Expressing honest and candid opinions on such matters contributes to improving the administration of justice. Conversely, false statements by a lawyer can unfairly undermine public confidence in the administration of justice.
Of course, as with libel law, to the extent Avenatti’s allegations about Kavanaugh are proven true, he will not face ethics problems. The Rules also apply only to statements of fact, not opinions. But to the extent they are unsubstantiated or false, Avenatti could face exposure under Rule 8.2 or any similar “reckless disregard” standard (let’s assume Avenatti did not know any statements he made were false and that, at worst, he was reckless).
State rules also differ on how attorney misconduct is punished. It is not clear to me what sanction Avenatti could face in the event it is determined there was a violation.
Now that Avenatti’s client has submitted a sworn declaration, it seems Avenatti could demonstrate at least that he was not “reckless” as to some or all of the statements. But the episode has been a reminder for lawyers about their responsibilities along the lines set forth in Rule 8.2.
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