Model Language to Govern Bar Complaint Filed in Election-Related Matters

Section 1. Short Title. This Act shall be known and may be cited as the “Protect Legal Integrity Act of 2023.”

Section 2. Purposes. 

  1. This Act governs the filing of bar complaints against attorneys that have participated in an election-related matter by establishing certain threshold conditions before such bar complaints may be filed. The Legislature deems these new requirements to be necessary to the protection of election integrity, which in turn requires that any and all sides to election controversies be able to draw on an adequate body of qualified counsel.
  2. This Act also imposes compensatory or, in some cases, treble damages on certain of those who file frivolous bar complaints in such matters. 
  3. As the number of bar complaints have increased throughout the country attacking attorneys that represent parties engaged in election-related lawsuits, the Legislature hereby recognizes that it possesses a strong interest in protecting attorneys in {insert State} from politically motivated career terrorism. 
  4. This Act will also deter activists from weaponizing the {insert State} Bar and penalizing or chilling the constitutionally protected practice of law, especially in election-related matters where partisan contests are fully to be expected and should remain free of any attempt to impose an intellectual orthodoxy on them. The positions taken in election-related legal contests should not depend on opinions thought to be respectable or fashionable.
  5. This Act will restore the Bar to its traditional role of investigating and disciplining attorneys based only on personal knowledge, whether of a client, or a court or other tribunal before which a targeted lawyer is appearing. Third-party intermeddlers should not be permitted to file, prevail on, or avoid adverse financial or disciplinary consequences if they nevertheless try to interject themselves into lawyer conduct that they have no personal involvement in.

Section 3. Definitions. For purposes of this statute, the following definitions will apply to the following terms:

  1. Agency Head” means the any federal, state, or local executive agency head that engages in adjudication or rulemaking but not a multi-member body.
  2. Bar” means the Bar of {insert State}.
  3. Client” means the client or clients for the matter out of which a bar complaint arises.
  4. Complainant” means the filer of a bar complaint.
  5. Court” means any federal, state, or local court.
  6. Compensatory Damages has its traditional meaning in state and common law. Compensatory damages are actual damages that are awarded by a court equivalent to the economic losses a party suffered.
  7. Election-Related Matter” means a complaint about lawyer conduct that relates to a federal, state, or local election of any kind, where a Qualified Party has filed the complaint.
  8. Frivolous means a bar complaint filed which lacks any arguable basis either in law or in fact or both.
  9. Multi-Member Body” means any legislative body, including a city council or equivalent, a full committee of such a legislative body (but not a subcommittee of a full committee), or a multi-member administrative agency where two-thirds of the members of the legislative body, committee thereof, or multi-member administrative agency, respectively, have affirmatively voted to bring a bar complaint.
  10. Other Counsel” means any other lawyer (whether opposing or aligned in whole or in part with the lawyer who is the subject of the bar complaint in question) who has entered an appearance before or is appearing before a Court, Agency Head, or Multi-Member Body in the same Election-Related Matter. 
  11. Personal Knowledge” means claims of lawyer misconduct that the Complainant filing a bar complaint has personally witnessed, not merely read about in the media, heard about from someone who may be a witness or from another source, or where the Complainant merely harbors a generalized civic concern to want to impose discipline on the lawyers colorably advancing legal or factual positions they disagree with.
  12. Public Interest Group” means any organization of any kind acting in a non-client capacity filing or attempting to file a bar complaint against a third-party lawyer in an Election-Related Matter. Public Interest Groups, however, may file bar complaints in Election-Related Matters against lawyers they have themselves retained or that are part of their own staffs.
  13. Qualified Party” means bar complaints filed by one or more of the following categories of actors having Personal Knowledge: (a) a Client; (b) Other Counsel; (c) a Court; (d) an Administrative Head; or (e) a Multi-Member Body that is bringing a bar complaint.
  14. Treble damages” are a type of punitive damages, which are calculated to be three times the award of compensatory damages.

Section 4. Standing.  No bar complaint may be filed to the Bar as to one of its members in an Election-Related Matter unless the Complainant is filed by a defined Qualified Party and the complaint is supported by sworn testimony in the form of an affidavit demonstrating that the Complainant possesses Personal Knowledge of the allegedly illegal or unethical conduct by the relevant member of the Bar.

Section 5. Up-Front Identification of Lawyers Involved in Drafting a Bar Complaint.  

  1. Any bar complaint in an Election-Related Matter filed by a Qualified Party that is a Client who is a lawyer, Court, Agency Head, Multi-Member Body, or Other Counsel must prominently identify on the face of any bar complaint the lawyer(s) who participated in drafting that bar complaint. 
  2. Lawyers specified as drafting participants on a bar complaint must sign that complaint in physical ink or via an approved form of electronic signature as adopted by the highest court of {insert State}. By signing the bar complaint, such lawyer(s) are acknowledging that if they are adjudicated to have filed a frivolous bar complaint in an Election-Related matter, they are in turn consenting to be subject to discipline by the Bar or by any other bar of which they are a member, notwithstanding that they were acting on behalf of an entity possessing immunity or qualified immunity, such as a Court, Agency Head, or Multi-Member Body.
  3. Notwithstanding Section 5(a)-(b), a Client who is not a lawyer may file a bar complaint involving an Election-Related Matter based solely on non-lawyer, lay-person understandings of why they believe they have been mistreated or poorly represented by a member of the Bar who has served as that person’s counsel, though a Client’s allegations must also be presented by affidavit.

Section 6. Cause of Action Granted for Compensatory Damage Recovery Against Frivolous Bar Complaints. 

  1. When any attorney has been the target of a frivolous bar complaint involving an Election-Related Matter, in {insert State}, or in any other State, Territory, or District, that attorney is granted a cause of action sounding in tort under the laws of {insert State} against a Client, Other Counsel, Public Interest Group, or counsel signing a bar complaint on behalf of a Court, Agency Head, or Multi-Member Body as long as such an attorney can establish venue in a court of {insert State}
  2. Such an aggrieved attorney suing to recover in light of having been forced to respond to a frivolous bar complaint may be awarded actual damages as compensation from the Complainant.
  3. A person will be found to have filed a frivolous bar complaint if the factual contentions of the complaint are objectively baseless, premised on an indisputably meritless legally theory, or are both baseless in fact and in law.
  4. This Act contemplates that Public Interest Groups may attempt to file frivolous bar complaints despite the Personal Knowledge requirement in Section 3(11) and the related standing requirement in Section 4.  As a result, back-end damages remedies are prescribed as necessary by the Legislature to fully disincentivize improper conduct attempting to chill legal representation in contentious election matters.

Section 7. Award of Treble Damages. Any attorney who can demonstrate that his prior reputation was damaged after prevailing in a compensatory damages action shall also be awarded treble damages for any lost fees, partner draws, wages, or the like and shall also be awarded the costs of the litigation and reasonable attorneys’ fees.

Section 8. Severability. If any provision of this Act or its application to any person or circumstance is held invalid, then the invalidity shall not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to that end the provisions of this Act shall be severable.

Section 9. Effective Date. The requirements of this Act shall be effective no later than June 1, 2023.


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