B4 EZ BD THE WASHINGTON POST.SUNDAY, NOVEMBER 22 , 2020
evidence that GOP observers were hindered in
watching the counting in Detroit and later
withdrew their f ederal lawsuit. This past week,
Trump voters had to drop lawsuits in Georgia,
Michigan, Pennsylvania and Wisconsin for
similar reasons.
So far Trump’s lawyers haven’t been sanc-
tioned, perhaps because they are rapidly drop-
ping their lawsuits to avoid it. More than two
dozen s uits filed by the president or his sup-
porters have been withdrawn or thrown out.
On one day, Nov. 13, Trump’s campaign lost or
dropped nine cases. The Democratic election
lawyer Marc Elias, who has been involved in
opposing Trump’s litigation in several states,
crowed on Twitter that the president and his
allies had lost 31 times in court and won only
once.
Concerns about violating ethical rules partly
explain why Trump’s lawyers are deserting
him. Two large law firms withdrew as counsel
only days after filing lawsuits. Two new lawyers
signed on, only to withdraw within days them-
selves. Lawyers in h igh-profile cases rarely quit
a client so quickly — unless they fear that the
representation will violate the rules of legal
ethics. Then they have no choice. Likewise,
most of the establishment legal team that
defended Trump during his impeachment has
stayed away from the post-election litigation
efforts.
The exodus has left Trump’s lawsuits in the
hands of Rudolph W. Giuliani, who until this
past week hadn’t been in a courtroom in
decades. Although he’s made wild accusations
in news conferences about “a massive fraud”
involving the C lintons, George Soros a nd Hugo
Chávez, Giuliani acknowledged in a federal
court hearing in Pennsylvania that “this is not a
fraud case.” And so far, none of the strangest
claims h e’s made publicly h ave found their w ay
into any court filings.
Trump has thrived by bending the world to
his own version of reality. But in court, his
lawyers a re ethically o bligated t o be honest and
pursue only meritorious claims. The presi-
dent’s undemocratic effort to overturn a free
and fair election is being turned aside, and we
have the ethics of lawyers to thank.
Twitter: @adamwinklerAdam Winkler i s the Connell professor of law at
UCLA School of Law, where he teaches, among other
subjects, legal ethics.worthy and no more than “spam.”
The duty of lawyers to avoid making frivo-
lous claims has also hurt Trump’s efforts to use
the courts to overturn the e lection. L awyers a re
prohibited from making assertions in court or
in their filings “unless there is a basis in law
and fact for doing so that is not frivolous,” in the
words of the ABA’s Model Rules. Lawyers have
to be especially careful about this one, because
judges can i mpose m onetary sanctions against
them o n the spot. A whole section o f the r ules of
federal civil proceedings specifies the duties
lawyers have to ensure that the factual claims
they’re making are supported by evidence and
that the legal ones have a sound basis, too.
The Trump campaign’s lawyer in Arizona
confessed that, again contrary to Trump’s
tweets, he was “not alleging that anyone was
stealing the election.” He simply didn’t have
any facts to substantiate that assertion. In
Michigan, campaign lawyers couldn’t showIn a hearing over Trump’s claim that his
campaign was being excluded from observing
the ballot count in Philadelphia, the judge — a
conservative George W. Bush appointee —
asked Trump’s lawyer if campaign observers
were in fact present. “There’s a nonzero num-
ber of people in the room,” the lawyer respond-
ed vaguely. The judge, irritated, said he was
“asking you as a member of the bar of this
court” — judge-speak for “Be honest with me
right now or I’ll have your bar c ard.” Because of
the duty of candor to the court, Trump’s lawyer
had to concede that campaign observers were
indeed in the room.
In Arizona, where Trump says Republican
voters were instructed to use Sharpie pens that
would supposedly cause their ballots to go
uncounted, legal ethics required the Trump
campaign’s lawyer to admit that many of the
supporting affidavits by voters who alleged
that they were affected were probably untrust-P
resident Trump’s lie that the election
was stolen has had some unfortunate
success in the court of public opinion:
Polling shows that more than three-
quarters of his supporters believe the
contest was riddled with fraud. To overturn the
result, t hough, Trump n eeds t o win in the court
of law. A president who packed the federal
courts with conservatives now depends on the
judicial system to agree with his perspective
and provide him a pathway to a second term
despite Joe Biden’s win.
Yet Trump’s legal strategy has run aground
— in no small part because of legal ethics.
While lawyers are often cast as unscrupulous
and immoral, they are required to follow a
strict code of professional responsibility estab-
lished by state bars. The famous duty of law-
yers t o keep a client’s c onfidences, for i nstance,
comes from these ethical codes. Law students
must take a course in legal ethics, t he bar e xam
includes a section on ethical rules, and conti-
nuing-education requirements emphasize
lawyers’ duties to clients and to the courts.
Two ethical rules have been fatal to Trump’s
election lawsuits in state after state: the law-
yer’s duty of candor to a court and the lawyer’s
duty to avoid frivolous claims. The president
can spew all the theories he wants, and his
advocates can say whatever they like on televi-
sion, but because of these two ethical duties,
Trump’s l awyers can make claims before courts
only if they can back them up with actual
evidence.
According to the American Bar A ssociation’s
Model Rules of Professional Conduct, a lawyer
is prohibited from m aking “a false s tatement of
fact or law to a tribunal.” This rule is as
straightforward as it sounds: Lawyers a re obli-
gated to be truthful in everything they say to a
court. If they aren’t, they can lose their license
to practice law. ( Former Pennsylvania a ttorney
general Kathleen Kane, for example, was dis-
barred after she lied under oath about leaking
grand j ury material about a political rival while
in office.)Trump’s lawyers can’t help him steal the election. Thank legal ethics.
EMILY ELCONIN/REUTERSAttorneys are forbidden to
tell lies in court, says law
professor Adam WinklerSupporters of
President Trump
protest supposed
election fraud in
Lansing, Mich., last
weekend. Most of
the president’s
claims about
irregularities have
been dropped or
dismissed in court.still open; restaurants are still open. The state
prides itself on how much it expanded its
testing capacity, but the positivity rate is so
high — nearly 15 percent — that there are
surely cases we’re not detecting. So many tests
are coming back positive that we can’t keep
up. Some people don’t know about their
positive result until a week after their test. By
the time they hear from us, they may have
spread the virus to countless others.
I look up every case I’ve had who has
passed away. I’ve spoken to, and cried with,
some of their families. I wonder whether I
was the last person they spoke to before they
were intubated. I read their obituaries. This is
my way of reminding myself: This was a
person. Deaths usually lag behind caseloads.
I’m scared that, soon, I won’t be able to keep
up.
When North Dakota first lifted its restric-
tions in May, I felt scared at how bad things
might get. But at least in the spring, the
pandemic response seemed like a big, coun-
trywide team effort: Do your part, stay home,
wear a mask. Now everyone’s exhausted, and
the tools that were once effective don’t work
anymore. Every time I hang up, I just hope for
the best — that people will make their own
calls, that they will take care of those close to
them.
It’s terrifying that it has come to this.
As told to Post editor Sophia Nguyen.Kailee Leingang w as born and raised in North
Dakota. She is a senior nursing student at the
University of North Dakota.advice, but I direct them to the right services
and sources of information. Mostly, I just try
to listen. Some people, when they are sick and
in isolation, s imply want to talk to someone so
they don’t feel so alone.For months, it seemed as if we were
relatively safe here — that the pandemic
would hit big, busy places in New York and
California but might not r each us. Instead, the
current wave has swallowed my state. This is
what an emergency looks like in North
Dakota: Every day seems to break a record for
new infections. Even if hospitals have open
beds, they don’t have enough staff; the
governor recently proposed allowing health-
care workers who test positive to continue
working in covid-19 units.
Last weekend, when North Dakota finally
got a mask mandate, our whole t eam celebrat-
ed the news. Then reality set in: Schools arethe pandemic has spiraled out of control. In
mid-October, my p arents, who a re in their late
40s, received a positive test result a few days
after I visited them for a weekend. Their cases
were relatively mild, thankfully, and they
recovered — but even after all the questions I
asked them, they couldn’t figure out where
they got it. Back at school, w hen I started
experiencing symptoms — a fever, a horrible
headache, a faded sense of taste — I kept
working from my off-campus apartment.
When I told my m anagers that I wasn’t f eeling
well and it could be the coronavirus (though
I’d tested negative), they told me to keep up
with my remote shifts as best as I could. The
case volume was so high that my team needed
all hands on deck.
Even with less paperwork and no contacts
to call, my job has only gotten harder. On one
call, a person will tell me that their whole
family is sick — the mom and dad, all five kids
— and that they are absolutely miserable. On
another call, a relative will pick up and say
that the person I tried to reach is already in
the hospital and may not make it. The next
person might shout, saying it’s all a hoax. In
general, though, it seems as though people
have grown more accepting, almost resigned,
when they are told they are sick. The news
doesn’t surprise them much: After all, the
coronavirus is everywhere.
What began as a 15-hour-a-week position is
now a round-the-clock job. My phone buzzes
constantly with calls and texts from my cases,
reporting symptoms and asking questions.
Legally, I’m not allowed to give medicalI
t’s frustrating to be a nursing student
during a pandemic: All you want to do is
help, and you have some skills, but you
can’t work in a hospital until you gradu-
ate. So in August, when my university
sent an email saying that the North Dakota
state government was hiring seniors in the
health sciences as contact tracers, I signed
up. Finally, I thought. Here’s something I can
do.
The job was emotionally grueling — no one
wanted to get a phone call from us, and people
sometimes cried or yelled or called us names.
But it felt as though we were making a real
difference. If the state health authorities
could track the coronavirus, then we could
limit the spread. Before we knew it, though,
new daily cases in North Dakota rose into the
hundreds, then the thousands. On Oct. 22, our
managers told us to stop asking our cases for
their contacts. There was no longer any point.
In recent weeks, North Dakota has had the
most new cases per capita in the country. Our
hospitalizations have doubled since last
month. We have the world’s highest death rate
from covid-19, the disease caused by the
coronavirus. Things have gotten so bad, so
fast, that we’ve surrendered one of our key
weapons against t he pandemic: Te st a nd trace
has gone by the wayside. Even if we had
enough staff to call everyone’s workplace and
contacts, there are so many new infections
that it wouldn’t be very effective. At this point,
the government has given up on following the
virus’s path through the state. All we can do is
notify people, as quickly as we can, that they
are infected.
This is a dramatic change in our responsi-
bilities. Previously, when we called someone
who tested positive, we’d launch into ques-
tions. We’d ask for demographic information,
their health and clinical history, where they
work, and where they had been. We’d s et t hem
up on the state’s monitoring system to fill out
daily email surveys about their symptoms.
(Older populations often had trouble with the
system, and I called some people every day to
help record their progress.) We’d ask when
their symptoms started and calculate how
long they’d been infectious. We’d c ompile lists
of everyone they’d come into contact with,
socially or in their workplaces. Then we’d
notify those people, too, and get them set up
on the monitoring system.
Now we run through each call as efficiently
as possible. We ask the basic demographic
questions, but unless the person is pregnant,
we don’t g ather any history. Unless their job is
in health care, or they work in or attend the
K-12 school system, we don’t notify their
employers. We tell them about the email
survey, urge them to warn the people they’ve
been in contact with and offer our phone
number for any questions.
That’s it: We have to trust, or pray, that they
will follow through. My c o-workers and I were
trained to investigate cases and trace con-
tacts; the general public doesn’t have that
expertise. It’s u psetting that we’re leaving that
work to them. Many states already tried
relying on “personal responsibility” to con-
tain the coronavirus. Now people are dying,
and we’re putting even more of the burden on
individuals?
My own life is an example of how quicklyI traced the virus in North Dakota. We had to give up.
Now all we do is notify people
that they’ve been infected, says
nursing student Kailee LeingangTOM STROMME/BISMARCK TRIBUNE/ASSOCIATED PRESS
Members of the
North Dakota
National Guard
administer
coronavirus tests
inside the Bismarck
Event Center. The
state has recently
had the most new
coronavirus
infections per
capita.It seems as though people
have grown a lmost resigned
when they are told they are
sick. The news doesn’t
surprise them: After all, the
coronavirus is everywhere.