New York Law Journal

Originally published in New York Law Journal

July 29, 2021

Suing Twitter: Must a Lawyer Believe in His Lawsuit?

By Joel Cohen

Should any lawyer be faulted when she’s been engaged to wage a lawsuit whose purpose is not to actually succeed with the case as pleaded, or even come close (which should be totally acceptable even to the most stringent of ethicists)—but, rather, to promote some other purpose important for the client by merely filing the lawsuit?

ou glance at the newspaper and learn that the former president has sued Twitter, Facebook and Y YouTube, and actually seeks court approval to certify the lawsuits as class actions. This is not about the merits of the lawsuits. Or Trump’s overwhelming longing to regain the public spotlight. There’s clearly no dispute about that. Of course, especially to a Trump admirer, such lawsuits would sound so unquestionably appealing. After all, the proprietors of those incredibly successful platforms were never Trump supporters in the first place, and likely never‐Trumpers. Accordingly, they may have been looking for just the right opportunity to toss him overboard when his tweets, as they saw it, would become overly incendiary and destructive to the ship of state and its passengers. And surely, they did. But, still! So what happened? The biggest performer on those platforms became digitally emasculated in the blink of an eye. Trump could no longer wake up early in the morning and pound away at his iPhone or other device with his often combustible rants du jour. No matter how non‐partisan and objective these platforms might wish to present themselves, they were never Trump’s home base no matter how vital Trump may have been to likely stimulating their usage by the public. So you read the Trump complaints. They’re at the very least superficially plausible. They don’t read at all like the rants of Donald Jr. or Matt Gaetz or Marjorie Taylor Greene. True, they’re not complaints signed by the likes of Floyd Abrams or Lawrence Tribe or Paul Clement—each notable litigators. They, nonetheless, plead a legal case in an undeniably legalistic manner. One problem, though. And I’m certainly not a First Amendment scholar, even though I’ve read what they have to say. Simply put, as best I can assess it, there’s no there, there. Trump claims First Amendment reprisals against these platforms for having been de‐platformed by them; but there’s no First Amendment reprisal for private action. Twitter, Facebook and YouTube aren’t state actors. For most scholarly thinking—although there are some lesser dissenters—that’s the end of the story. Trump’s lawyers surely knew that going in. So what? Lawyers can’t possibly believe that every lawsuit they bring is winnable, on either the law or the facts. Nor can lawyers possibly be held to such a standard—i.e., “I truly believe that I have the law and the facts on my side.” But still! The truth is, as every thoughtful commentator has written, Trump brought these lawsuits for fundraising purposes—not expecting to create brand new First Amendment precedent that will hold that the First Amendment does indeed apply to non‐ state actors too. If his own lawyers didn’t realize that going in then what does it say about them as the lawyers on whose back Trump chose to ride this foray? Indeed, this is not about Trump’s litigious nature. We all know about that. Furthermore, he’s not a lawyer required to live by any ethical standard that inhibits how, why and against whom he, as the client, may bring a lawsuit. So, where are we left? Put simply: May a lawyer ethically initiate a lawsuit for a client when she knows “from jump” it has no prayer in the world (and legally shouldn’t), as long as the facts are pleaded in an ostensibly plausible manner—as fairly can be said about Trump’s current lawsuits? Meaning, should any lawyer be faulted when she’s been engaged to wage a lawsuit whose purpose is not to actually succeed with the case as pleaded, or even come close (which should be totally acceptable even to the most stringent of ethicists)—but, rather, to promote some other purpose important for the client by merely filing the lawsuit? E.g., fundraising, promoting a book deal, advertising a TV show or lifting a candidacy. While Trump is a good example of using lawsuits this way, this is not really about lawyers engaged by Trump in particular to joust with his adversaries. It’s about the litigating bar generally. That is, when a skeptical public, particularly its members who unfairly become lawsuit defendants, wonders whether plaintiff lawyers should be ethically required to actually have faith ab initio in the (ultimate) legal viability of the cases they bring, hard as it might be to gauge the actual existence of that faith. Yes, so‐called Rule 11 sanctions are available against lawyers who pull the trigger when they reasonably know that they have no bullets in their litigation guns. Sanctions, though, are somewhat rarely imposed for the frivolous initiation of lawsuits. This is not a proposal for a plethora of sanctions, or even sanction demands, on the part of defendants who find themselves victimized by baseless lawsuits. Rather, one wonders about a reboot, of sorts, for some complaint‐happy litigators who, from time to time, find themselves willing to not only cavalierly institute unwarranted lawsuits brought to them by supposed victims, but also to encourage potential plaintiffs to retain these lawyers to undertake them. Disciplinary authorities are hardly in a position to psychologize the mindset of attorneys to determine if they fully recognized that the lawsuits that they filed were frivolous. And, again, this isn’t about the lawyers that initiated the Trump First Amendment lawsuits—they represent only, perhaps, the current public face of the issue of lawsuits initiated by attorneys somewhat frivolously. Notably, Rule 3.1 of the New York Rules of Professional Conduct provides that “a lawyer shall not bring … a proceeding … unless there is a basis in law and fact for doing so that is not frivolous.” Conduct is “frivolous” under the rule “if the lawyer knowingly advances a claim … that is unwarranted under existing law, except that the lawyer may advance such claim … if it can be supported by good faith argument for an extension, modification or reversal of existing law.” Not so much help. (The other bases for a determination of frivolousness don’t apply to these Trump litigations). Interestingly, the rule’s comment is wide enough to drive a truck through. That is, “the law is not always clear and is never static. Accordingly, in determining the proper scope of advocacy, account must be taken of the law’s ambiguities and potential for change.” It adds that “such action is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail.” The action is frivolous, however, if the action has no reasonable purpose other than to harass or maliciously injure a person, or if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good‐faith for an extension, modification or reversal of existing law (which includes the establishment of new judge‐ made law). Notably, there is nothing in the rule or comment that addresses a lawyer who knows that the client doesn’t have a prayer of succeeding, doesn’t really care about that and is only filing the lawsuit for some unrelated purpose, as is the smart money in the Trump litigations.

2 The cheapest thing in the world for someone to do is to file a lawsuit—just a filing fee upon retaining a wanna‐ be‐world‐beater lawyer who hopes to stand in front of a camera bank next to a notable public figure armed with his own mission.

Joel Cohen practices white‐collar criminal defense law as senior counsel at Stroock & Stroock & Lavan. A former state and federal prosecutor, he is an adjunct professor at both Fordham and Cardozo Law Schools.

Reprinted with permission from the July 29, 2021 edition of the NEW YORK LAW JOURNAL © 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877‐257‐3382 or [email protected].

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