5th Circuit sanctions Marc Elias and other Perkins Coie lawyers for 'redundant and misleading' motion

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A federal appeals court has sanctioned Perkins Coie attorneys who represent Democratic groups for a “redundant and misleading” motion in election litigation.

The 5th U.S. Circuit Court of Appeals at New Orleans imposed the sanctions on lawyer Marc Elias and his legal team in a March 11 order, report Law360, Bloomberg Law and A March 12 press release is here.

The court imposed the sanctions in a case in which Perkins Coie lawyers argued that the elimination of straight-ticket voting in Texas disproportionately affected minorities.

The appeals court said the lawyers filed a Feb. 10 motion to supplement the record that was nearly identical to a Sept. 29, 2020, motion that they previously filed. The earlier motion was denied.

“This inexplicable failure to disclose the earlier denial of their motion violated their duty of candor to the court,” the court said.

The lawyers had argued that they thought the denied motion applied only to emergency stay proceedings. But there was no such limit, the appeals court said. And if the lawyers “had any confusion about the application of the order, they could have and should have disclosed the previously denied motion in their new motion,” the appeals court said.

The appeals court ordered the lawyers to pay attorney fees incurred by their opponents in connection with the duplicative motion and to also pay “double costs.” The lawyers “are also encouraged albeit not required” to review the ABA model ethics rule on candor toward courts and to complete one hour of continuing legal education on the topic.

Perkins Coie’s first supplemental motion had sought to establish that the lawyers’ clients had standing to seek an injunction blocking enforcement of the ban on straight-ticket voting, Law360 explains. The Texas secretary of state had raised the standing argument for the first time during the injunction appeal. After the injunction expired, the Perkins Coie lawyers again sought to file declarations showing standing when the secretary of state claimed protection by sovereign immunity.

The plaintiffs challenging the ban on straight-ticket voting are the Texas Alliance for Retired Americans, the Democratic Congressional Campaign Committee and the Democratic Senatorial Campaign Committee.

Perkins Coie released this statement to publications covering the sanctions: “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. The firm fully and completely supports our attorneys in this case.”

The case is Texas Alliance for Retired Americans v. Hughs.

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