Brett Kavanaugh has lied to the Senate multiple times over the course of more than a decade. During his latest appearance before the Judiciary Committee, in which he denied Dr. Christine Blasey Ford’s allegation of sexual assault, former classmates created text chains just to commiserate. Several who’d not come forward before were so incensed at how flagrantly Kavanaugh lied that they released statements or made appearances. It’s really only the New York Times that’s still struggling to characterize his latest round of lies as such. The delay is, by now, tragicomical.
There’s been talk of derailing the confirmation, bringing criminal charges, and initiating impeachment, but right now all three are partisan-controlled. The statute of limitations is up in Maryland (it’s since been changed), and Jeff Sessions is never going to sign off on prosecuting Kavanaugh for lying to the Senate. And, of course, Republicans have a Senate majority.
One potential, non-political penalty has been bypassed: disbarment. Kavanaugh’s still a member of the DC Bar—he has judicial membership. And if nothing else, it’s abundantly clear that Kavanaugh has violated the DC Bar’s Rules of Professional Conduct, modeled on the American Bar Association’s, which apply to judges as well as practicing attorneys.
Kavanaugh shouldn’t even be allowed to practice law, much less make it.
The Rules have an entire section devoted to “Maintaining the Integrity of the Profession.” Here are four things that constitute professional misconduct under Rule 8.4. Attorneys may not:
(a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects;
(c) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;
(d) Engage in conduct that seriously interferes with the administration of justice;
Notes on what constitutes a violation of professional ethics prove that, in a stricter world, Kavanaugh would already have been reported to the D.C. Bar.
Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.
No lie under oath is “minor,” to be clear. Kavanaugh’s proclivity for lies more than suggests “indifference to legal obligation.” It’s not just what he lied about substantively—“devil’s triangle” and “boofed,” for example—but how he dodged questions.
Every “I can’t remember” or “I don’t recall” could be a lie. Many of them almost certainly are given the suspicious convenience with which Brett seemed to have remembered and forgotten things. Kavanaugh’s taking advantage of how difficult proving his recollection or lack thereof is, never mind oaths and such.
Here’s Rule 8.3, the section on reporting ethical violations:
(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.
Clarifying notes on this rule reiterate that knowledge of either attorney or judicial misconduct triggers a reporting requirement for other members of the D.C. Bar.
Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. Lawyers have a similar obligation with respect to judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense.
Given that Kavanaugh’s violated professional ethics rules on national television, and given how clear it is that the Senate Judiciary Committee has been prevented from thoroughly investigating, it’s tempting to imagine the D.C. Bar stepping in. If he were any normal lawyer caught in the lies he’s been caught in already, that’d be ample ground for disciplinary action.
Want an example of how seriously lying under oath is taken? I’ve got you covered.
[I]n In re Owens the respondent, who had just finished testifying about prior counsel’s negligence in a Merit Systems Protection Board matter, was ordered to leave the hearing room by the administrative law judge so that her co-counsel could testify about the same issue. Once outside, the respondent placed her ear to the door in an attempt to listen to her colleague’s testimony, not knowing that she was in view of a court employee and a video camera. When later asked about this by the judge in a teleconference, the respondent, who had been placed under oath, replied that she had not been listening at the door. A few minutes later, the respondent called back and admitted the truth to all parties.
It was the attorney’s false statement, not her listening at the door, that earned her a 30-day suspension. The penalty would have been steeper had her reason for lying been something other than embarrassment. Can you imagine what the penalty for years of lies under oath to the Senate Judiciary Committee on issues of significance should be?
If the Bar enforced professional ethics perfectly, even Kavanaugh’s lawyers could be in trouble. Rule 3.3 bars attorneys from making or permitting misrepresentations to a tribunal. Virtually any official body that makes even quasi-judicial determinations counts.
Granted, the Senate Judiciary Committee might not fall under the definition of “tribunal.” But so long as an attorney’s involvement in Kavanaugh’s preparation constitutes representation, the same rules apply—evidence, including testimony, submitted to the Committee would be treated as if a tribunal per Rule 3.9.
The rules of conduct around “candor to tribunal” further illustrate how serious Kavanaugh’s ethical violations are and could be for others. Starting with the fact that, under Rule 8.4(a), it’s a violation of professional ethics to knowingly contribute to another attorney’s violation of professional ethics.
Back to Rule 3.3 and candor. Here’re relevant provisions from part (a).
(a) A lawyer shall not knowingly:
(2) Counsel or assist a client to engage in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good-faith effort to determine the validity, scope, meaning, or application of the law; […]
(4) Offer evidence that the lawyer knows to be false, except as provided in paragraph (b). A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
About (a)(2): Making false statements to any government body, as Kavanaugh’s almost certainly done, is a crime. The statute specifies that this rule applies to “any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress.”
On (a)(4): Kavanaugh’s testimony is evidence. If his attorneys knew it to be false, they violated the Rules of Professional Conduct by continuing to represent him. The only exception to the sub-rule that a lawyer cannot offer evidence they know to be false is exclusive to criminal proceedings, when a defendant demands to testify and the lawyer knows they’re committing perjury.
The DC Bar urges lawyers not to submit evidence they’re suspicious of, but it absolutely bans submitting evidence that a lawyer knew or even perhaps should have known was false.
The prohibition against offering false evidence applies only if the lawyer knows that the evidence is false. A lawyer’s knowledge that evidence is false can be inferred from the circumstances. Thus, although a lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore an obvious falsehood.
Then there’s this bit, Rule 3.3(d).
(d) A lawyer who receives information clearly establishing that a fraud has been perpetrated upon the tribunal shall promptly take reasonable remedial measures, including disclosure to the tribunal to the extent disclosure is permitted.
Here’s the note expanding on what this provision would mean:
If the lawyer’s client is implicated in the fraud, the lawyer should ordinarily first call upon the client to rectify the fraud. If the client is unwilling to do so, the lawyer should consider other remedial measures.
This provision has been interpreted to apply only through the conclusion of a proceeding, as with Rule 3.3(a). Still, it means that if evidence comes to light proving Kavanaugh perjured himself before this process ends, and refuses to admit as much to the Senate Judiciary Committee, his lawyers are supposed to be the first ones in line to disclose his fraud.