Marc Elias Sanctioned by Fifth Circuit
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Federal Appellate Court Sanctions Democratic Election Attorney for Filing a ‘Redundant and Misleading’ Motion

A federal appeals court last week ordered sanctions against several prominent Democratic election attorneys for violating ethics rules in a case challenging Texas’s effort to end straight-ticket voting ahead of the 2020 presidential election.

A three-judge panel on the U.S. Court of Appeals for the Fifth Circuit last Thursday sanctioned attorney Marc Elias and five of his colleagues at the law firm Perkins Coie, ordering them to pay double the total amount of attorneys’ fees and court costs incurred by the state of Texas over a “duplicative motion” filed with the court in February.

The court also “encouraged” but did not require the attorneys “to review Rule 3.3 of the Model Rules of Professional Conduct” regarding “Candor Toward the Tribunal” and to complete a one-hour Continuing Legal Education (CLE) course “in the area of Ethics and Professionalism, specifically candor with the court.”

According to the order, the Democratic attorneys filed a February 10, 2021 motion to supplement the court record that was “nearly identical” to a motion filed with the district court in Sept. 2020. The case, filed in Aug. 2020, challenged “Texas’s effort to end straight-ticket voting.”

“Critically, Appellees likewise failed to notify the court that their previous and nearly identical motion was denied. This inexplicable failure to disclose the earlier denial of their motion violated their duty of candor to the court,” the appellate panel stated.

The attorneys asserted they were under the impression that the denial only applied to emergency stay proceedings, a notion the court swiftly rejected.

Appellees’ only explanation for their redundant and misleading submission is that they construed the original denial of their motion to supplement the record as an order that applied only to the emergency stay proceedings. However, Appellees’ original motion to supplement the record on appeal was not limited to the stay proceeding, nor was the order denying it so limited. There is no legal basis to support Appellees’ post hoc contention that motions to supplement the record apply only to one stage of an appeal.

Texas Attorney General Ken Paxton, a Republican who is under indictment and under FBI investigation, thanked the court for its ruling.

“Elias has no valid explanation for the misleading submissions to the Fifth Circuit. Even when they were notified that they violated ethical rules, they refused to withdraw their motion. They were aware of their violations and blatantly chose to ignore them,” Paxton said in a statement. “I thank the Court for issuing these much-needed sanctions. Perkins Coie cannot continue to mislead the Court, especially in a matter as important as election integrity.”

Perkins Coie senior media relations manager Justin Cole told Law.com that the firm was standing by its attorneys.

“We do not normally respond to requests for comment on pending litigation, but the firm and the attorneys involved in this matter strongly disagree with the Appellate Court’s ruling and its order of sanctions in this case,” Cole said. “The firm fully and completely supports our attorneys in this case.

‘Read the full Fifth Circuit ruling below:

Fifth Circuit Sanctions by Law&Crime on Scribd

[image via YouTube/MSNBC screengrab]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.