By Joseph A. Brophy

For those of us who write about legal ethics and lawyers behaving badly, the presidency of Donald Trump were boom years. Michael Cohen, Michael Avenatti, Rudy Giuliani and Sidney Powell were jailed, disbarred or sanctioned. Several lawyers at the DOJ and FBI were fired or convicted of crimes for their role in the Russia investigation. And the special prosecutor John Durham has indicted two private lawyers from the Clinton campaign with potentially more on the way.

For whatever reason, the Biden presidency has been a disappointment for those of us who follow legal skullduggery.  Alas, President Trump is done, or as Miracle Max might say, “mostly dead.” But the legal ethics fallout from his presidency remains a source of interest and entertainment in jurisdictions across the country, most recently in Delaware where the Supreme court of Delaware admonished a superior court judge in unusually strong terms for revoking a pro hac vice application from a Trump-connected lawyer.

Carter Page was the Trump campaign aide who found himself in the center of the Trump/Russia saga when he was pegged, apparently without cause, as a Russian asset. Mr. Page sued in Delaware for defamation allegedly committed by the defendant when it published articles accusing him of colluding with Russian agents to interfere with the 2016 presidential election. Mr. Page chose as his lawyer L. Lin Wood, who is licensed in Georgia and applied to be admitted pro hac vice in the Delaware action. Mr. Wood has a reputation as a bit of an eccentric. Mr. Wood styles himself via his website as “Attorney for the Damned,” which I admit I am upset I did not think of first. He once allegedly floated the idea to his law partners that he “might” be the second coming of Jesus.

The Delaware superior court ordered Mr. Wood to show cause why his admission to the Delaware court should not be revoked because of Mr. Wood’s allegedly ethically dubious actions in post-2020 election litigation in Wisconsin and Georgia. Let us just say that, to put it mildly, Mr. Wood does not believe Joe Biden won the election. For those of you wondering, Mr. Wood’s alleged claim to be a resurrected deity was not among actions that concerned the court.

Mr. Wood withdrew his application to the Delaware court but denied engaging in any unethical behavior in Georgia or Wisconsin. However, that did not satisfy the Delaware superior court. Rather than accept the withdrawal, the court, without a hearing, made factual findings adverse to Mr. Wood with respect to both the Georgia and Wisconsin election litigation. As the court explained: “Albeit not in [the court’s] jurisdiction, [Mr. Wood] exhibited a toxic stew of mendacity, prevarication and surprising incompetence.”

Mr. Wood appealed to the Supreme Court of Delaware, which was not pleased with the superior court’s ruling. First, the Supreme Court noted that neither the Georgia nor Wisconsin courts had found Mr. Wood’s conduct to be unethical. Second, the Supreme Court considered it “questionable” for the lower court to insinuate that Mr. Wood was partially responsible for the riot that occurred at the US Capitol, particularly since that issue was not before the court and there was no evidence for that insinuation in the record. Third, the lower court reached its conclusions without a hearing, which is required under Delaware Superior Court Civil Rule 90.1(e) before a court may revoke a pro hac vice application. The Supreme Court of Delaware found that “[b]oth the tone and the explicit language of the Superior Court’s memorandum opinion and order suggest that the court’s interest extended beyond the mere propriety and advisability of Wood’s continued involvement in the case before it.” The court further concluded that “one cannot read the [superior] court’s order without concluding that the court intended to cast aspersions on Wood’s character.”

The Supreme Court vacated the revocation of Mr. Wood’s application because the Supreme Court found that an application for admission pro hac vice should not be denied based upon allegations in another jurisdiction that have not yet been adjudicated, particularly when there are no allegations that the applicant had disrupted or adversely affected proceedings in Delaware. The not very subtle subtext of the Delaware Supreme Court’s opinion is that judges should not make factual findings based on headlines from political news coverage, especially about happenings in other jurisdictions.

The Delaware court’s revocation of Mr. Wood’s application echoes New York’s suspension of Rudy Giuliani’s license last year without a hearing on an “emergency” basis for statements Mr. Giuliani made six to eight months before the suspension in public and in front of courts in other jurisdictions that did not sanction him for those statements. Whatever one thinks of Lin Wood, it is unfortunate the country’s ongoing fever over the 2020 election has yet to break and is still present in certain parts of the judiciary.

About Joseph A. Brophy

Joseph Brophy is a partner with Jennings Haug Keleher McLeod in Phoenix. His practice focuses on professional responsibility, lawyer discipline, and complex civil litigation. He can be reached at jab@jhkmlaw.com.

The original article appeared in the February 2022 issue of Maricopa Lawyer and can be viewed here: https://jhkmlaw.com/wp-content/uploads/2022/03/220308-ML.pdf.

###