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The State Bar of Texas is investigating Attorney General Ken Paxton for his role in trying to overturn the election results in four battleground states. According to documents obtained by the Associated Press, Paxton is under investigation for making potentially misleading statements and challenging the election process in bad faith.
It is relatively rare that a state bar would investigate an attorney for making a legal argument. However, according to the Associated Press, the Texas State Bar is currently investigating whether the lawsuit contesting how Michigan, Georgia, Wisconsin, and Pennsylvania conducted their elections was frivolous and unethical. The Texas State Bar prohibits lawyers from abusing legal procedure by bringing frivolous lawsuits.
In December 2020, Paxton filed a lawsuit against those four states directly to the Supreme Court. It was unusual in several respects. For one, states do not generally try to interfere with the elections of other states. And while the Supreme Court has jurisdiction to immediately hear challenges between states, even at the time it was widely considered a Hail Mary lawsuit, with the odds of success minimal at best. SCOTUS threw out the case, as expected, holding that Texas did not have standing to sue.
The investigation into Paxton's potential professional misconduct arose out of a letter sent by Kevin Moran, the president of the Galveston Island Democrats. Moran was responsible for revealing the investigation, sharing letters from the State Bar of Texas and the Board of Disciplinary Appeals with the AP.
Originally, the State Bar of Texas dismissed Moran's complaint. But that decision was overturned by a tribunal. The investigation is confidential, so we won't likely hear about further developments for a few months. Clearly, however, the political considerations in this investigation will be hard to navigate around.
Paxton is only the latest prominent GOP attorney to get into some hot water for allegedly unethical behavior regarding the false allegations of voter fraud. The State Bar of New York is currently investigating Rudy Guiliani for his role in promoting the voter fraud conspiracy theory, and Sidney Powell is under investigation by the State Bar of Michigan. Both are facing potential disbarment and sanctions. The State Bar of Georgia has also asked Lin Wood to undergo a mental health evaluation in order to keep his license.
Whether you think the State Bar of Texas is justified in investigating the embattled attorney general might depend on your political beliefs and how much stock you put into the allegations of voter fraud. For lawyers, however, it does go to show that those subject to professional licensing boards have to be careful about wading into hot-button political issues. While politicians may be able to get away with lying all the time, lawyers and other licensed professionals need to be careful not to skirt over the edge of professional standards for political gain or notoriety.
Considering the controversies currently surrounding our election process, COVID-19 information and policies, and other hotly debated and often lied-about topics, those of us with professional licensing at stake need to be careful before chasing likes and followers on social media. Or using our professional standing to engage in behavior that can be seen as either unethical or an abuse of our position.
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