Lawyer defends D.C. judge who initiated ethics inquiry after election lawsuit

The District of Columbia Court of Appeals in Washington, D.C. REUTERS/Andrew Kelly
  • Amicus lawyer at Vinson & Elkins said challenge to initiation of disciplinary probe is premature
  • Trial court judge said lawsuit against Pence "filled with baseless fraud allegations"

(Reuters) - A federal appeals court in Washington, D.C., on Tuesday was urged to uphold a judge's order initiating a disciplinary investigation of a lawyer who sued former Vice President Mike Pence to stop Congress from confirming Joe Biden's presidential election win.

The U.S. Court of Appeals for the District of Columbia Circuit heard from a court-appointed lawyer at Vinson & Elkins who was asked to address whether the attorney facing the misconduct inquiry has standing to pursue an appeal.

In February, U.S. District Judge James Boasberg referred the lawyer who sued Pence, Erick Kaardal, to a federal court committee in Washington that weighs professional misconduct complaints against lawyers. Boasberg had concluded Kaardal's failed lawsuit was "filled with baseless fraud allegations and tenuous legal claims."

Kaardal, a litigator at Minneapolis-based law firm Mohrman, Kaardal & Erickson, is challenging Boasberg's referral order. His lawyers argued in the D.C. Circuit that Boasberg acted outside his authority. Kaardal and his law firm are the only parties in the D.C. Circuit.

Vinson & Elkins counsel Matthew Etchemendy, appointed by the D.C. Circuit to take a position on which there was no party, argued in Tuesday's filing that Kaardal's appeal should be dismissed as premature. Etchemendy did not address the merits of the appeal or the underlying trial court proceedings.

"The district court's referral order did not authoritatively decide any legal issues or bind any parties, and it marked not the culmination of an adjudicatory process but the initiation of proceedings that may (or may not) lead to a final, appealable decision at a later date," Etchemendy wrote.

He continued: "In this instance, the district court did not act in the capacity of an adjudicator, but in the capacity of a complainant."

A lawyer for Kaardal, Channing Shor of Eccleston & Wolf, did not return a message seeking comment on Tuesday.

The D.C. federal court's grievance committee, comprising at least six members of the bar, conducts inquiries in private. Any formal charges of attorney misconduct become matters of public record.

Etchemendy said Boasberg "did not even exercise any uniquely judicial power in referring Mr. Kaardal to the committee, for any member of the public can submit a similar complaint with materially identical legal consequences."

Kaardal's lawyers argue Boasberg "should have exerted judicial restraint to further publish its allegations of misconduct on the public record." They said Boasberg "circumvented" confidentiality requirements in making his referral order public, and they contend the order could deter future litigants from making "vigorous representation of clients."

Kaardal is part of a small group of lawyers facing ethics questions for their roles advocating claims against Biden's presidential win.

A Michigan federal judge is considering a legal-fee order to sanction several lawyers who unsuccessfully argued that Donald Trump defeated Biden. Rudy Giuliani's law license in New York was suspended in June over his claims the 2020 election was stolen from Trump, his former client.

The case is Wisconsin Voters Alliance v. Harris, U.S. Court of Appeals for the District of Columbia Circuit, No. 21-5056.

For Erick Kaardal and Mohrman, Kaardal & Erickson: Channing Shor and Justin Flint of Eccleston & Wolf

For amicus curiae: Matthew Etchemendy and Jeremy Marwell of Vinson & Elkins

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