Eastman appeal chances slight, ethics attorneys say

Disbarring John C. Eastman for his role in the attempted insurrection on Jan. 6, 2021 would deprive him of the ability to earn a living even though he committed no crime and was only fulfilling his professional duty to his client, his attorney said.

Randall A. Miller of Miller Law Associates APC said in a statement: “The process undertaken by Dr. Eastman in 2020 is the same process taken by lawyers every day and everywhere – indeed, that is the essence of what lawyers do. They are ethically bound to be zealous advocates for their clients – a duty Dr. Eastman holds inviolate.”

“Dr. Eastman maintains that his handling of the legal issues he was asked to assess after the November 2020 election was based on reliable legal precedent, prior presidential elections, research of constitutional text, and extensive scholarly material,” he said.

Miller said Friday that he would appeal a recommendation by a State Bar Court judge that Eastman, a former dean of the law school at Chapman University, be disbarred. He would not say if he would also seek a stay of automatic suspension of his license that was set to go into effect on Saturday.

Eastman currently faces criminal charges in Fulton County, Georgia alongside former President Donald Trump, but has not been convicted of a crime.

“[I]n the eyes of the law he is presumed innocent. Dr. Eastman remains adamant that in his case, that presumption is absolutely correct,” Miller said. “Any reasonable person can see the inherent unfairness of prohibiting a presumed-innocent defendant from being able to earn the funds needed to pay for the enormous expenses required to defend himself, in the profession in which he has long been licensed. That is not justice and serves no legitimate purpose to protect the public.”

Other professional responsibility attorneys were skeptical that these defenses can hold water.

“The comments in the press release echo the First Amendment defense raised in two of the criminal cases involving the former president and, of course, Mr. Eastman is under indictment in one of those cases,” David B. Parker of Parker Shaffie LLP in Los Angeles said in an email.

Parker said multiple courts have already rejected Eastman’s First Amendment defense, including that of U.S. District Judge David O. Carter, who ruled that Eastman was used to facilitate fraud last March. Among the legal claims against him is his alleged role in trying to institute slates of fake electors in states where Trump lost.

“Doing research and writing memoranda is generally a core part of the practice of law, but Mr. Eastman went further and became a promoter of and an actor in the events surrounding the so-called fake electors, which was nothing less than an end run around the prerogative and responsibility of the states to identify the elector and dispatch their votes to Congress to be formalized on January 6,” Parker said.

“Eastman also tried to induce the vice president to disregard his clear constitutional duty,” he continued. “If not for the good judgment of Vice President Pence, the advice of conservative constitutional scholars and the advice of Dan Quayle, Mr. Eastman’s strategy might have worked — at least for one day.”

Quayle was reported to have advised Pence against intervening in the election certification on Jan.uary 6 by Washington Post reporters Bob Woodward and Robert Costa in their book “Peril.”

Jason E. Fellner, a legal malpractice attorney with Fellner Law Group in San Francisco, said that Miller’s statement failed to acknowledge the role of attorneys as stewards of justice.

“What’s important is that he’s failed to abide by his professional responsibility to the court and to the public at large,” Fellner said in a phone call on Friday.

Fellner compared Eastman’s conduct to that of Thomas V. Girardi, the disbarred California attorney accused of defrauding clients out of millions.

“It’s actually a benefit for the public good that the likes of someone like Eastman, or Girardi before him, are being forced into retirement,” Fellner said.

Professional liability and legal malpractice attorney Mark B. Abelson of Campagnoli, Abelson & Campagnoli in San Francisco conceded that Eastman is obligated to be a zealous advocate for his client, and that he remains presumed innocent until charged of a crime.

“However,” Abelson said, “the California State Bar is charged with protecting the public from attorneys who disregard or violate their professional responsibilities, whether the attorney is facing criminal charges that arise from the same violations of the attorney’s professional responsibilities. The State Bar did and should have given Mr. Eastman all due process to defend himself during their proceedings to discipline him or revoke his license.

“It would be a failure of the State Bar to do its investigation and prosecute Mr. Eastman for the numerous gross violations of his ethical responsibilities and then not to proceed to carry out the penalty that he so richly deserved for the numerous ethical violations he committed,” Abelson added. “The State Bar has determined he is a danger to consumers of legal services and cannot be trusted to stay within the ethical rules required of all attorneys who appear in court and interact with their clients. There is no reason to allow him to continue to practice law at this time.”

State Bar Judge Yvette D. Roland recommended that Eastman be disbarred in a 128-page ruling released on Wednesday. In the Matter of John Charles Eastman, SBC-23-O30029 (State Bar Court, filed Jan. 26, 2023).