Who Will Guard the Guards?

by Michael Fruitman and Jim McCarthy

Emily P. Newman is a member of the Virginia State Bar (VSB), admitted, i.e., licensed to practice, in 2012.

Publicly available information reveals that Ms. Newman was a staffer in Congress and in the administration of Donald Trump up to the time of the election of Joe Biden. It is unclear precisely when Newman separated from federal employment. However, on November 25, 2021, she signed onto a federal lawsuit in Michigan, listing her participation as “of counsel” along with eight other attorneys and identifying the Texas office address of Sidney Powell (of Kraken fame) as hers. The Michigan proceeding was one of four federal actions in which Newman participated. The complaint sought to invalidate Michigan’s vote for presidential electors committed to Biden. It was later amended to request emergency injunctive relief and signed by the identical group of attorneys.

The group of nine attorneys in the Michigan legal action were members of the bar in eight state jurisdictions (DC, GA, MD, MI, NJ, NV, NY, and VA). Federal Judge Linda Parker’s decision opened with a clear statement of attorney responsibility. Read the full decision, entered August 25, 2021, here.

Specifically, attorneys have a responsibility to the judiciary, their profession, and the public (i) to conduct some degree of due diligence before presenting allegations as truth; (ii) to advance only tenable claims; (iii) to proceed with a lawsuit in good faith and based on proper purpose.

Judge Parker further characterized the purpose of the lawsuit, finding that the filing “abused the well-established rules applicable to the litigation process by proffering claims not backed by law; proffering claims not backed by evidence (but instead speculation, conjecture, and unwarranted suspicion); proffering factual allegations and claims without engaging in the required prefiling inquiry; and dragging out these proceedings even after they acknowledged that it was too late to obtain the relief sought.”

Having, in unambiguous language, described the conduct of the attorneys, Judge Parker concluded her written decision by ordering the attorneys to pay the legal expenses of the city and state and undertake 12 hours of continuing legal education. In addition, Parker ordered the clerk of the court to notify the state bar associations of the nine to consider disciplinary actions.

The judge’s decision is in the public domain along with the codes of conduct, creating, at least, some public notice or expectation of action on the part of the involved bar associations. For example, the code of the Virginia State Bar advises that “Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process.” Since this is the language of lawyers, the use of the verb “is” instead of “may” must be taken literally.

The Virginia State Bar also provides on its website an online form to file a complaint against a Virginia attorney. As was learned when a complaint was filed, the public interest, public content, and unconditional online form for filing a complaint are not necessarily relevant. Here is the VSB response to a complaint by a Virginia citizen against Emily P. Newman for conduct alleged to violate the professional standards and abuse of the legal process as cited by Judge Parker:

The VSB will not initiate a disciplinary investigation based upon information provided to us from a concerned citizen who does not have direct, personal involvement with a particular matter.

Whether judge or citizen, by this standard, it may be inferred that neither has standing to complain. It must be noted also that a closer examination of the VSB website does not offer who may file a complaint, i.e., concerned citizen or other. The online form and instructions do not provide a further clue. The issue then becomes whether VSB has any responsibility to entertain the order of the Michigan judge. Every U.S. citizen has a stake in the results of the 2020 election.

Even if the Virginia Bar would not accept “information from a concerned citizen,” as an agency, the proxy entrusted by the Commonwealth and its citizenry to exercise its monopoly, there is the onus of some public duty. While it is true that VSB commonly and regularly publishes a list of attorneys who have been disciplined, there appears to be no affirmative duty to advise the public of conduct by members that has, in fact, arisen in the public domain.

Insulation from the public interest is an endemic characteristic of monopolies. The Roman poet Juvenal posed the question:  Quis custodiet ipsos custodes?; Who will guard the guards themselves? It is now nearly two months since Judge Parker issued her decision, an ample period for some response from VSB and/or its leadership.

In an analogous vein, the demand for the creation of civilian review boards to oversee police conduct, especially under the impenetrable shield of qualified immunity, is not very different from the public’s interest in the conduct of attorneys. Unless the Virginia State Bar and other bar associations adopt a more public face, Lord Tennyson’s plaint will be fulfilled.  Bars will be crossed without a moan or other sound.

Michael Fruitman and Jim McCarthy are co-editors of www.VoxFairfax.com.

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26 responses to “Who Will Guard the Guards?”

  1. LarrytheG Avatar

    A staffer for what Congressman?

    1. Does it matter?

    2. James McCarthy Avatar
      James McCarthy

      Newman staffed on the Senate Indian Affairs and US Global Media.

      1. LarrytheG Avatar

        Who would she have reported to?

        1. James McCarthy Avatar
          James McCarthy

          Sen. Barrasso @Indian Affairs and a Michael Packer @ US Global Media.

          1. LarrytheG Avatar

            thnx much

  2. Dick Hall-Sizemore Avatar
    Dick Hall-Sizemore

    Good post.

  3. I take it the authors want the VSB to sanction the lawyer. This is yet another totalitarian thing that is ruining society. First, the Judge, an Obama appointee, could be (IS!) an activist, Leftist, Marxist hack.
    And, it’s possible that maybe, maybe she got it wrong…
    (You know, like Mark Herring’s opinion that ballots didn’t have to be postmarked for the 2020 “selection.” Second, there used to be a concept that lawyers had a duty to provide representation. Decades of lawfare by Leftists and no one got disbarred for clearly illegal theories (until they found a judge willing to make up new law). Now that the Left is in power, you must obey… Evil people.

    1. James McCarthy Avatar
      James McCarthy

      Y’all might be less dyspeptic had you read Judge Parker’s decision before hitting the keyboard. The gravamen concerned the evidence, or lack thereof, cited by the nine attorneys. Thus, the decision was not about legal theory but the sworn public responsibility of attorneys to adhere to legal process and principles. The VSB is solely responsible as a monopoly to assess attorney competence and conduct according to a code of ethics.

      This is, FYI, the reason Rudy Giuliani’s law license has been suspended in NY and DC.

      1. I know very well about lawyers’ filings. And the same problem applies in NYS. Basically, if you file a lawsuit and lose, you get disbarred? How about a lawsuit that never gets heard? This isn’t intended to shut up opposition? At the threat of your professional license?
        Lawyers file lawsuits. They allege facts and suspicions on information and belief.
        Seriously, you want this lawyer punished? If you publish something inaccurate in your blog, should it be taken away for “misinformation?”
        Settling political scores this way is totalitarian. Liberals used to have some standards…

        1. James McCarthy Avatar
          James McCarthy

          “Upon information and belief” contains the term information which does not equal suspicion. As a former member of the NYS bar, I am well acquainted with the requirements of pleadings and the public duty of attorneys. The article urges the VSB to investigate Judge Parker’s findings. It is your misunderstanding that attempts to convert its content to a finding of disbarment. Only lawyers themselves can address whether a bar member has violated ethical criteria.

          1. Gee…thanks for telling that to a Virginia lawyer. Maybe you should be investigated for violating Ethical Considerations… See the danger in using licensing for political purposes?
            Quis custodiet custodes applies everywhere and the lack of general morality and acceptance of wrongdoing for political gain is destroying the social fabric. The law of unintended consequences can be a b!tch. I would say the VSB position might have a smidgen of wisdom.

          2. James McCarthy Avatar
            James McCarthy

            You are welcome to identify evidence and accumulate proof in a pleading or article for publication. If silence by the VSB equates to wisdom, then voices of comment here are also toothless. The Latin quote most appropriately applies in cases where a profession has a monopoly on the business. You may wish to review the works of a free market icon of the right – Milton Friedman in this regard. If social fabric is being destroyed, the silence of lambs contributes.

            Be sure, as an ethical lawyer, to provide my defense a copy of your complaint. As it stands, neither you nor I require a license to express opinions in print. Lawyers are ethically prohibited from lying in court pleadings. It is that simple.

          3. I’ll believe you’re not just a partisan hack then when you first file complaints against all the US attorneys involved in the Bob McDonnell witch hunt (overturned 9-0 by the Supremes and just another example of law fare by the Left) and Bob Mueller and all his Wilmer Hale cronies in RUSSIA! They knew it was bogus immediately and let it linger until after the midterms to flip Congress, and then still couldn’t do the right thing and exonerate Trump.
            All people should not lie. Just admit you want to use the law to punish people who disagree with you politically and are disappointed the VSB won’t play along…

          4. James McCarthy Avatar
            James McCarthy

            Please let all know of the results of the complaints you filed against all you name. That report will demonstrate your nonpartisanship. Unless of course you share my disappointment concerning no avenue for a concerned citizen to voice such complaint. However, it appears that your ethical criterion is not to file complaints against those who disagree with you politically. Blog commentary is safe for making all types of complaints by political hacks and all others.

          5. Very skillfully avoiding my point! I didn’t file complaints against them. You are the one advocating for citizen involvement in bringing Bar complaints. I think lawyer ethics are close to non-existent. Virginia may be slightly better than other States, but lawyers tolerate known lying by their clients (and hide behind they don’t truly know), claiming they are being zealous in representation. They engage in discovery abuse to drive up costs. Politically, they bring cases of no value where the process is the punishment. I did try to file a Bar complaint in a case I was a personal defendant. The plaintiffs were liars. The very well respected law firm knew they were lying and an email was produced (it had been forwarded to a non-party, losing privilege) acknowledging that the plaintiffs would not be able to verify the complaint. But the liars did so anyway. And the case went on for years. The “ethics” guru at the State Bar discouraged filing, noting it was just lawyers being lawyers.
            If you approve of using licensing power to punish political opponents, you have a streak of authoritarianism in you that is dangerous. But you do you. I’m sure you’d be a fair and benevolent substitute for God…

          6. James McCarthy Avatar
            James McCarthy

            If you had read the article, you would discover that, in fact, I filed a request to VSB to investigate. It’s difficult to respond to your “points” because they tend t obe amorphous, railing against all lawyers and all lying.. What is the objection to monopoly bar associations offering a public channel to file complaints? The “zealous representation” lie is precisely what the Michigan judge examined and precisely what ethical codes of conduct seek to prohibit.

          7. The objection is to third party intervenors trying to make a political point as opposed to dealing with attorney misconduct. Since you are such a zealous defender of lawyer impropriety, have you looked into filing a third party complaint against Kevin Clinesmith who altered an email to justify a FISA warrant to spy on the Trump campaign and presidency? He got a slap on the wrist.
            I think the VSB policy might have a little bit of wisdom to it…to avoid people like you wanting to play politics. Now, whether they actually do anything, except in egregious cases, remains to be seen. I think there is much room for improvement in legal ethics, and filing political Bar complaints will only make things worse.

          8. James McCarthy Avatar
            James McCarthy

            Super!! So you have no sympathy for a public avenue of complaint against attorneys protected by a monopoly. Would such a complaint be political where the attorney acted illegally? Have you filed a third party complaint against Kevin Clinesmith? The wisdom of ignoring public sentiment escapes me. Lawyers and bar associations have a public responsibility and operate as a proxy for the public as a monopoly with power granted by the state.

          9. Dude. We disagree. I think you might be a leftist authoritarian hack who wishes to use licensing to punish political “enemies.” If you care about the purity of the Bar, then you should be filing complaints everywhere. I think the VSB restriction to parties might be considered wise to avoid people like you wanting to get even and limit it to parties. You should work on the “public sentiment” aspect. I think the only “public sentiment” is Leftists wanting to punish people for the crime of supporting Trump.
            Get a grip. Or go try to persuade the VBS yourself. But you open a very dangerous door and it is clearly aimed at chilling speech and the right to contest political outcomes. So I think you are a hypocrite because you haven’t been incensed about all the other lawyer misconduct and you wish to harm this young lawyer – maybe end her career, certainly hurt her ability to earn a living – because you are a “good” person (defined as a Dem with TDS).

          10. James McCarthy Avatar
            James McCarthy

            You allow your suspicions to rush to conclusion about a person you do not know. Again, had you read the article, you would realize the main point was the absence of an avenue for public complaint. You miss the point that the VSB is a state authorized monopoly, a proxy agency for the public. Few things are more authoritarian than a mute government agency. BTW, I would have filed a complaint against Rudy Giuliani but my NY colleagues were ahead of me. It has apparently also passed your cognition that my responses drew no conclusions about your political beliefs or leanings. If you can debate or discuss facts in place of asserting ideological barbs, you might be heard. As it stands, I have heard enough.

          11. You’ve heard nothing. And you’ve said nothing. I think the VSB’s policy has some wisdom to it. You don’t. Of course, if I were to wish to point out the lack of ethics of a Leftist lawyer, you would be saying the VSB is right to limit complaints to parties, wouldn’t you? And you are pure as the driven snow and have no political motivations, purely out of the goodness of your heart and your fealty to truth, justice and the American way…

          12. James McCarthy Avatar
            James McCarthy

            Your feigned capacity – not ability – to read my mind is daunting in the same way you rely upon the absence of logic. If you know of a “leftist” Virginia lawyer who has violated the VSB ethical code, I will join you in filing a public complaint. BTW, it’s not enough for there to be a lack of ethics but some evidence of a violation thereof. What is deficient IMO, as repeatedly pointed out, is the absence of opportunity proscribed by a monopoly entrusted by the state government. The 9th bullet point of Bacon’s Rebellion clearly sets forth this principle. Try it, you may like it.

          13. Sorry you find disagreement so troubling to your delicate sensibilities. Maybe you could intervene with a complaint against the lawyers in this case – https://nypost.com/2021/10/26/pablo-escobars-cocaine-hippos-legally-people-us-judge/
            I still think the VSB policy could be based on wisdom… You don’t, or is it you don’t in this case?

  4. tmtfairfax Avatar

    I’d like to see my bar association, the D.C. Bar (which is mandatory) open an investigation into the Attorney General’s potential conflict of interest with his son-in-law’s company because of Garland’s unconstitutional attempt to chill 1st Amendment rights of citizens vis a vis school board protests and the ethics of his attempt to chill those rights.

    1. James McCarthy Avatar
      James McCarthy

      There is a much longer, earlier line up, including Sidney Powell cited by the Michigan judge. I believe, as a member, you have standing to file a complaint with the DC bar against either of them. Go for it; don’t simply comment on a blog. Let all know the results.

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