[00:00:00] Speaker 03:
Take up Blakeby Gates, number 23-160-23.

[00:00:27] Speaker 00:
I just want to say, I have a problem in my left ear today, and I apologize.

[00:00:31] Speaker 00:
I may have to lean in or ask to repeat.

[00:00:34] Speaker 03:
That's fine.

[00:00:34] Speaker 03:
We'll try to be louder.

[00:00:36] Speaker 00:
OK, thank you.

[00:00:40] Speaker 00:
May I begin, Your Honor?

[00:00:42] Speaker 00:
Proceed.

[00:00:43] Speaker 00:
May it please the court.

[00:00:43] Speaker 00:
Dennis Wolinchek for Professor Alan Dershowitz.

[00:00:47] Speaker 00:
Your Honor, I'd like to start by saying, regardless of how you decide on the Parker case that you just heard, we believe our case is different.

[00:00:57] Speaker 00:
and doesn't depend on whether that case was groundless or not.

[00:01:03] Speaker 00:
I would point out Professor Dershowitz was not a party to the disciplinary proceeding that you've heard about.

[00:01:10] Speaker 00:
But it's uncertain whether he will be brought in in the future based on what we know.

[00:01:17] Speaker 00:
But he objectively acted here on his understanding gleaned over some 50 or more years of practice

[00:01:27] Speaker 00:
of what the of counsel designation means and what it was intended to mean.

[00:01:33] Speaker 00:
And I don't think the lower court really took a lot of exception with that concept of being of counsel to the Parker firm.

[00:01:41] Speaker 00:
In doing so, Professor Dershowitz simply cannot, as an of counsel, nor can any other retired professor, judge in a similar situation, be expected to

[00:01:56] Speaker 00:
recreate or delve into the over 200 hours of research that, it's our understanding, the Parker firm had done on these factual issues.

[00:02:05] Speaker 00:
He has to rely on that, and he did.

[00:02:08] Speaker 00:
And there is nothing in the record, nothing, that shows that anything that he did in his capacities of counsel for his limited role and his limited opinion that he was there to present to the court on the constitutional issue was in any way based on what we just heard argued here,

[00:02:25] Speaker 00:
false or groundless or not researched or anything else.

[00:02:31] Speaker 00:
So we're not advocating here for no responsibility of the of counsel position at all.

[00:02:36] Speaker 00:
To the contrary, we believe that it makes sense for the of counsel to be out in the open, to be signing off, be responsible for their work product.

[00:02:47] Speaker 00:
But we believe respectfully that the court cannot be expected to have of counsel be essentially

[00:02:56] Speaker 00:
an overseer of the leading counsel's investigation, who is responsible and who is going to be responsible for whatever their work was that he relies upon.

[00:03:06] Speaker 00:
We believe that sanctions here would be an extraordinary punishment to a distinguished career of a professor from Harvard for many, many years, very well-known and respected person, a lawyer who's never been sanctioned in his entire career,

[00:03:24] Speaker 00:
And it would severely chill, in our judgment, other similarly situated counsel in these situations.

[00:03:35] Speaker 00:
Now, the Rule 11 itself gives flexibility.

[00:03:40] Speaker 00:
It provides that the attorney certifies, etc., that they have formed their conclusion after an inquiry reasonable under the circumstances.

[00:03:51] Speaker 00:
It also contemplates expressly in most situations there is a non-delegable duty.

[00:03:57] Speaker 00:
We're in that category of those situations where it cannot be expected that someone disclosing themselves to the court as a counsel.

[00:04:06] Speaker 00:
And there was a hearing on this to determine it.

[00:04:09] Speaker 00:
And it's not really seriously in dispute.

[00:04:11] Speaker 04:
There's no argument under the rule 11 because Mr. Dershowitz, Professor Dershowitz distinguishes themselves as of council that the reasonableness inquiry, reasonable under the circumstances, different.

[00:04:24] Speaker 04:
versus someone that is just counsel.

[00:04:26] Speaker 00:
Yes, your honor.

[00:04:28] Speaker 00:
Uh, that's the point that there has to be some determination of that.

[00:04:31] Speaker 00:
And there was, there is no real dispute about it.

[00:04:33] Speaker 00:
The hearing, if you look at even the court's order at the end of the order, he doesn't dispute at all, nor did they, uh, with any evidence that Professor Dershowitz wasn't being credible and what he did.

[00:04:45] Speaker 04:
Any other cases that make that type of distinction of, of counsel versus counsel?

[00:04:50] Speaker 00:
You know, that's the problem.

[00:04:52] Speaker 00:
And honestly, that's why we're here.

[00:04:54] Speaker 00:
We believe that the court should make some distinction in that regard.

[00:04:58] Speaker 00:
We agree with Judge Tucci.

[00:04:59] Speaker 00:
I don't think he misstated that, that he asked me that question in the hearing.

[00:05:03] Speaker 00:
And I said, I don't really have a lot of authority on this quite candidly, other than experiential kind of experience, you know, experience with

[00:05:13] Speaker 00:
how this is done, how Professor Dershowitz has honestly stated why it was done from all those years ago, he consulted with experts, and no one has ever contested it.

[00:05:23] Speaker 00:
Well, we're here now, and we asked the court to create a rule, but we asked the court not to apply it retroactively here, because there really is, in this circuit, no clear understanding.

[00:05:33] Speaker 00:
Now, the problem we've got, while I'm on it, and I'll just vary from my outline here, while we're on it, you know, I argue the richer case in the state Supreme Court.

[00:05:41] Speaker 00:
and they overturned the lower court, the appellate court, on this very issue of sanctions.

[00:05:46] Speaker 00:
And I think it's important because, although I know it's not binding on this court, but I think it's important because lawyers have to have some clear guideline, and that's what we're saying here now.

[00:05:56] Speaker 00:
Professor Dershowitz didn't have that notice, that clear guideline.

[00:06:00] Speaker 00:
He based it on what he'd done in the past.

[00:06:02] Speaker 00:
As you know, he was reluctant to even be involved of counsel, et cetera, et cetera.

[00:06:06] Speaker 00:
But he did so because ultimately it was asked of him and he believed that it was the appropriate thing to do to be out front and to disclose that.

[00:06:14] Speaker 00:
Now, he could have just been counsel, but he chose specifically to delineate what his role would be to indicate to the court that his role was limited.

[00:06:24] Speaker 00:
And it was.

[00:06:24] Speaker 00:
There's no dispute about it.

[00:06:26] Speaker 00:
So the question I ask is,

[00:06:29] Speaker 00:
Are there going to be two rules?

[00:06:32] Speaker 00:
Because honestly, a lawyer has to know in Arizona, is it richer that I follow?

[00:06:37] Speaker 00:
Is it the language in richer that says the challenge to the rule of law is these kinds of sanctions?

[00:06:46] Speaker 00:
in these election disputes.

[00:06:47] Speaker 00:
That's the real danger to the rule of law, the court said.

[00:06:50] Speaker 00:
It's not bringing the claim.

[00:06:52] Speaker 00:
Now, counsel would say, well, yeah, you can bring those claims.

[00:06:56] Speaker 00:
I know she said you can bring those claims, but you have to do them honestly or factually correctly.

[00:07:02] Speaker 00:
Well, Professor Dershowitz did do that.

[00:07:05] Speaker 00:
But the question is, is he responsible?

[00:07:07] Speaker 00:
I'm sorry.

[00:07:09] Speaker 03:
I think the Supreme Court made that clear in Pavlik and the floor versus Marvel Entertainment Group.

[00:07:15] Speaker 03:
Justice Scalia's opinion says this is this signing the document.

[00:07:20] Speaker 03:
It's a non-delegable

[00:07:24] Speaker 03:
representation that the truth, that the factual allegations are truthful and that the papers are legally reasonable.

[00:07:36] Speaker 03:
I think this opinion by the Supreme Court made it clear in 1989.

[00:07:40] Speaker 03:
I don't understand Mr. Professor Dershowitz's

[00:07:48] Speaker 03:
creation of this artificial distinction of council, he signed the papers.

[00:07:53] Speaker 03:
And the signing, which I think is very clear, is at the heart of rule 11.

[00:07:59] Speaker 00:
Well, let me answer that please.

[00:08:02] Speaker 00:
Just a mere signature, which is really what the court relied upon, as you're saying now, is not the end of the inquiry to me.

[00:08:07] Speaker 00:
It really is the beginning of the inquiries to sanction.

[00:08:10] Speaker 03:
Representation, representation that these papers are truthful and legally reasonable.

[00:08:19] Speaker 00:
Well, I think that's a fair question, and I think the answer is that the leading counsel in the case is certifying and is responsible.

[00:08:26] Speaker 00:
But someone who's designated themselves for a very limited role as of counsel, once the inquiry comes out as to whether there should be a sanction, should not be held liable, basically.

[00:08:36] Speaker 03:
and that lends his credibility as a professor, a professor of Harvard, someone with a great reputation otherwise, perhaps.

[00:08:45] Speaker 00:
Sure, but he's not there, as I say, and this is factually undisputed here, he's not there to, again, look over the shoulder of lead counsel and do 200 hours of work when he's billing for three.

[00:08:57] Speaker 00:
That's just not realistic, Your Honor.

[00:08:58] Speaker 03:
Fine, he shouldn't sign the papers.

[00:09:00] Speaker 00:
Well, let me answer that.

[00:09:02] Speaker 00:
First of all, technically, and I don't want to get to be technical, really, because that's not my point, but technically, at the time that those papers were submitted, he was not even admitted at that point.

[00:09:12] Speaker 00:
Prohok Viche, in fact, it occurred in June.

[00:09:15] Speaker 03:
Right?

[00:09:16] Speaker 03:
I mean, that's... Should have been.

[00:09:17] Speaker 03:
Should have been, then he wasn't.

[00:09:18] Speaker 00:
I mean, that's... I'm not trying to rely on that, but technically, that's the point.

[00:09:22] Speaker 00:
At that point, he is not counsel in the case, to answer your question.

[00:09:25] Speaker 00:
That's all I was trying to get to.

[00:09:27] Speaker 00:
But putting that aside, because I don't think we're gonna rely on that as our main point, again, there has to be some rule of reason and lenient restraint with respect to people, retired judges, retired professors, that add their

[00:09:42] Speaker 03:
I would say the rule is don't sign your name to a document if you don't know that the allegations are truthful and are lawful.

[00:09:51] Speaker 00:
But again, you have to rely on counsel.

[00:09:54] Speaker 00:
What is the purpose of rule 11?

[00:09:56] Speaker 00:
Not to punish, but to deter.

[00:09:58] Speaker 00:
So you rely on leading counsel who are clearly competent counsel here, who clearly did do their homework, and frankly, I think did have grounds for this, clearly.

[00:10:09] Speaker 00:
I don't want to argue that because that's been argued.

[00:10:11] Speaker 00:
But clearly, somebody coming on in an expert role as a counsel to the firm.

[00:10:16] Speaker 03:
They might have to submit an expert declaration.

[00:10:20] Speaker 00:
I mean, why put your name as counsel?

[00:10:37] Speaker 00:
could actually evade the transparency requirements that a governmental agency would have.

[00:10:44] Speaker 00:
That was his role.

[00:10:45] Speaker 00:
There's no question about it.

[00:10:46] Speaker 00:
It's not in dispute.

[00:10:46] Speaker 00:
That's what he was asked to do.

[00:10:48] Speaker 00:
He wasn't asked to be counsel in the entire case.

[00:10:51] Speaker 00:
When that issue came up, he felt it was more appropriate, and we do too, by the way, in retrospect.

[00:10:56] Speaker 00:
to be involved in the case, not just by a declaration, but actually to argue those points to the court.

[00:11:02] Speaker 00:
And he was prepared to do that.

[00:11:04] Speaker 00:
That's why he remained silent in every one of these hearings, because that issue did not come up.

[00:11:09] Speaker 00:
So he was passive in that sense.

[00:11:11] Speaker 00:
But what is the purpose of the rule?

[00:11:13] Speaker 00:
The lead counsel is responsible.

[00:11:15] Speaker 00:
The lead counsel can be sanctioned if they're, in fact, lying about something.

[00:11:18] Speaker 00:
But what is the purpose of restraining, chilling a limited of counsel role

[00:11:26] Speaker 00:
that everybody knows is going to be limited and where the lead counsel is going to be still responsible.

[00:11:31] Speaker 03:
And didn't he sign as counsel in other places?

[00:11:34] Speaker 00:
I'm sorry.

[00:11:35] Speaker 03:
Didn't he also sign as counsel, not of counsel, in other papers?

[00:11:41] Speaker 00:
No, that was brought out in the court, Your Honor, and it was clear that the judge found that he was not responsible for that.

[00:11:47] Speaker 00:
That was clearly an administrative error from the Parker vote.

[00:11:49] Speaker 03:
And wasn't he publicly touted as the lead counsel by Kerry Lake and Mike Lindell and other people?

[00:11:56] Speaker 00:
Was he, was he counsel?

[00:11:58] Speaker 03:
As lead counsel.

[00:12:00] Speaker 00:
Was Mr. Dershowitz?

[00:12:02] Speaker 00:
Yes.

[00:12:02] Speaker 00:
Lead counsel?

[00:12:02] Speaker 00:
Absolutely not.

[00:12:03] Speaker 03:
By, by other people outside the courtroom.

[00:12:07] Speaker 00:
Yeah, well, I understand your point.

[00:12:09] Speaker 00:
Other people say a lot of things, but he has stated under oath that that was not something that he portrayed.

[00:12:15] Speaker 00:
He never knew of that at the time, and that was not his understanding of his role at all.

[00:12:20] Speaker 00:
I think that was stated by perhaps the My Pillow Guy.

[00:12:24] Speaker 00:
I can't remember his name.

[00:12:24] Speaker 03:
That's Mike Lindell.

[00:12:25] Speaker 00:
Yeah.

[00:12:25] Speaker 03:
Did you, did he also receive a copy of the,

[00:12:30] Speaker 03:
letter, the Safe Harbor letter from Maricopa County?

[00:12:34] Speaker 00:
And I think that's an important point, Your Honor, while you're on that, because the fact is that he did see that letter.

[00:12:41] Speaker 00:
He participated in the meeting passively.

[00:12:44] Speaker 00:
But similar to that King v. Whitmer case, where that same issue came up, if you recall, as to Stephanie, I think Gentilla was her name.

[00:12:53] Speaker 00:
The court relieved her of any responsibility for that because the court found, and this is true here, that she was not responsible as lead counsel for making the determination to dismiss the case, nor was he.

[00:13:04] Speaker 00:
He attended that passively, did not participate actively, but he was aware of it, yes.

[00:13:10] Speaker 00:
But he doesn't have the power, nor did she, in that Sixth Circuit case, to demand or dictate that it be dismissed.

[00:13:17] Speaker 03:
Maybe he could have taken his name off once he got the notice from the Maricopa County.

[00:13:23] Speaker 03:
He got the notice and left his name and still signed the papers.

[00:13:28] Speaker 03:
He got the notice and still signed the papers, right?

[00:13:33] Speaker 00:
Yes.

[00:13:34] Speaker 00:
Yes, he did.

[00:13:35] Speaker 00:
That his name would be on there as of counsel, exactly.

[00:13:39] Speaker 00:
And our position here today is that that should denote

[00:13:42] Speaker 00:
some limitation on the responsibility of enough counsel as was found factually by the court.

[00:13:48] Speaker 00:
The court doesn't disagree that he limited himself and that his role was limited and that nothing he did is found here to be sanctionable per se.

[00:13:55] Speaker 00:
But the court, going on to another issue quickly, I see my time is running out, but the court there

[00:14:01] Speaker 00:
I believe, and I won't get into it because I don't have time, was sending a message that is the wrong message.

[00:14:08] Speaker 00:
And it's a wrong message under the Richer case as well.

[00:14:11] Speaker 00:
And I think there has to be one rule.

[00:14:13] Speaker 00:
And in this case, as to Professor Dershowitz, there should be a rule of lenity with respect to an of-counsel designation that is clearly found factually to not have been involved in anything that was actually sanctioned.

[00:14:23] Speaker 00:
And that's the point.

[00:14:24] Speaker 00:
So going back to their point,

[00:14:26] Speaker 00:
Yes, we agree.

[00:14:27] Speaker 00:
People should be held responsible for their statements and for their acts if they're wrongful and they're factually devoid of any truth.

[00:14:34] Speaker 00:
But that is not the situation here, and this court should not impose that.

[00:14:38] Speaker 00:
Otherwise, it amounts to punishment and not deterrence.

[00:14:42] Speaker 00:
With that, Your Honor, I intend to save more time, but if I may.

[00:14:45] Speaker 03:
You can save time, and if you need, I'll give you more time.

[00:14:47] Speaker 00:
Thank you very much.

[00:14:48] Speaker 00:
Sorry.

[00:15:01] Speaker 01:
Thank you.

[00:15:02] Speaker 01:
Emily Kregger on behalf of the Maricopa County Defendants.

[00:15:07] Speaker 01:
First, I'd like to request to incorporate by reference the arguments that were stated in the previous session, if that's possible.

[00:15:15] Speaker 01:
Thank you.

[00:15:15] Speaker 01:
It's case number 22-16022 for the record.

[00:15:19] Speaker 01:
So I'm going to try not to repeat points that I made in the previous session.

[00:15:23] Speaker 01:
But the attorney, it's the county's position.

[00:15:26] Speaker 01:
The attorneys were properly sanctioned.

[00:15:29] Speaker 01:
The court properly exercised its discretion.

[00:15:31] Speaker 01:
They made misstatements of fact, and they brought a claim that didn't have any evidentiary basis.

[00:15:41] Speaker 01:
I want to talk about the arguments that were made by counsel regarding the of counsel designation.

[00:15:46] Speaker 01:
As was said, there is absolutely no case law or precedent whatsoever to support this assertion that's being made.

[00:15:56] Speaker 01:
And I would say to the court that

[00:15:58] Speaker 01:
You know, the plain language of the rule is clear.

[00:16:01] Speaker 01:
If you sign a pleading, these are your obligations.

[00:16:04] Speaker 01:
You heard counsel say something along the lines of, we need clear guidelines here.

[00:16:09] Speaker 01:
I submit to you there are clear guidelines.

[00:16:11] Speaker 01:
They're called Rule 11.

[00:16:13] Speaker 04:
Well, what about the Rule 11 in Texas says that after an inquiry reasonable under the circumstances, and their argument is, well, when you designate yourself as of counsel, what's reasonable is more limited than if you're full counsel.

[00:16:26] Speaker 01:
There I understand that that Qualifying language is in there, correct?

[00:16:34] Speaker 01:
Even does fit within the text, but it doesn't say that what my understanding of their argument is which is if you designate yourself as of counsel you have no Responsibilities under rule 11.

[00:16:45] Speaker 04:
No, that's not what they're saying They're saying if you designate yourself as of counsel you're responsible for the work that you provide and you produce I

[00:16:52] Speaker 01:
I think they're saying that rule of the out council designation means that those requirements aren't necessary.

[00:16:58] Speaker 04:
But even if, even if that's the case, why doesn't that not fit?

[00:17:03] Speaker 04:
Why does their interpretation not fit with the text of rule 11?

[00:17:06] Speaker 01:
Because they still have the obligation to, to determine whether the allegations being made in the complaint are truthful.

[00:17:13] Speaker 01:
And I will also say that the facts in this case don't support the argument that they're making.

[00:17:18] Speaker 04:
Just set aside the facts for now, but as a textual matter, you would concede that it's possible that the argument works, right?

[00:17:26] Speaker 04:
That because they designate themselves as of counsel, what's a reasonable, what's their inquiry reasonable under the circumstances is different.

[00:17:34] Speaker 01:
I don't think the self-proclaimed designation of of counsel changes your obligation.

[00:17:39] Speaker 01:
It can change how you act in the case.

[00:17:42] Speaker 04:
I understand that.

[00:17:42] Speaker 04:
I just, but textually, there's nothing that prevents that argument, correct?

[00:17:47] Speaker 01:
Prevents that if you designate yourself as of council, that means you have a lesser responsibility under rule 11.

[00:17:55] Speaker 04:
That what's reasonable under the circumstances is different.

[00:17:59] Speaker 01:
I don't think the title of of council changes that.

[00:18:02] Speaker 01:
I think perhaps the way that you're... I agree.

[00:18:06] Speaker 04:
There's policy reasons and all these reasons why that might be for or against.

[00:18:09] Speaker 04:
I'm just saying textually, does it fit?

[00:18:12] Speaker 01:
Well, I don't think it does because I think it's about what you did in the case and what your responsibilities were, which are if you sign the pleading to make a determination whether the allegations are truthful or have an evidentiary basis.

[00:18:26] Speaker 01:
So I think that it's analyzing whether under the circumstances of that case, whether your actions were reasonable.

[00:18:37] Speaker 01:
And I submit that the actions were unreasonable because

[00:18:40] Speaker 01:
the professor durstowitz said at the very beginning i'm just of counsel i don't have any responsibility here he got through a little on there he said i got on the right got on that phone call and i decided that this didn't apply to me and i hung up halfway through this is a lot of time to a case that let's take us out of this case to do one specific thing

[00:19:04] Speaker 04:
and you're asked to sign as of counsel, why isn't it reasonable to say I'm responsible for what my thing is and I'm relying on those other counsel to make sure everything else is proper?

[00:19:17] Speaker 01:
Well, I don't think there's any case law that supports that assertion.

[00:19:21] Speaker 01:
But I think that when I sign a pleading, if that's the rule I'm going to take, I could take a role in a case and say, look, I'm just going to help you out with this issue.

[00:19:31] Speaker 01:
I'm going to provide you information and I'm going to advise you on this.

[00:19:35] Speaker 01:
But I'm not signing the pleadings in the case because I haven't reviewed everything.

[00:19:39] Speaker 01:
I don't know the basis for it.

[00:19:41] Speaker 04:
But why isn't it also reasonable to I'm going to sign it but designate myself as something different to designate my different role?

[00:19:50] Speaker 01:
Because, well, respectfully, I don't think that that's what Rule 11 says.

[00:19:54] Speaker 01:
I think Rule 11 says- Well, why is it unreasonable?

[00:19:55] Speaker 01:
I think it's unreasonable because there are ways for attorneys to provide expertise.

[00:20:00] Speaker 01:
There are ways for attorneys to participate in cases.

[00:20:03] Speaker 01:
There are ways without signing the pleadings because as the court has said- There's a range of ways, but why is this way unreasonable?

[00:20:09] Speaker 01:
The court has said that when you put your name on a pleading, when you sign it, you are telling the court, I have looked at this and what I say is true.

[00:20:18] Speaker 01:
What I have said here is correct and true.

[00:20:20] Speaker 04:
To the best of my knowledge, that's after a reasonable inquiry.

[00:20:24] Speaker 01:
Correct.

[00:20:24] Speaker 04:
It's not that.

[00:20:25] Speaker 01:
And I would say that whether you're designated as of counsel or not doesn't minimize your responsibility.

[00:20:33] Speaker 01:
The lie.

[00:20:35] Speaker 01:
Because the designation has no meaning.

[00:20:37] Speaker 01:
And there's no meaning as counsel.

[00:20:41] Speaker 01:
In this case, he said afterwards that we didn't show but for causation related to what he did.

[00:20:47] Speaker 04:
If we said after today, the rule is if you designate yourself of counsel, your inquiry is limited to what's reasonable, which is your portion, if that's the rule,

[00:20:59] Speaker 01:
What's wrong with that how would the court or the council know what your specific contribution to the case what happened here there was an inquiry.

[00:21:08] Speaker 01:
Well you wouldn't know I mean from from receiving the planet pleadings and signing them so as as counsel when I wrote the rule 11 letter on behalf of my client I said.

[00:21:17] Speaker 01:
Everyone who signed this, I need you to understand, you have got this wrong.

[00:21:23] Speaker 01:
Maricopa County votes on paper ballots.

[00:21:24] Speaker 04:
But no, I'm saying if the rule of going forward is if you sign yourself of council, and then you could say, and if you're of council, you will be responsible for any persons that you worked on.

[00:21:32] Speaker 01:
Well, I mean, I think quite frankly, you're being invited to do that by this.

[00:21:38] Speaker 01:
And I think that I encourage you not to take that invitation, because the rule is clear.

[00:21:45] Speaker 01:
What's the harm?

[00:21:47] Speaker 01:
The harm is, like I said, A, you don't know the contribution.

[00:21:51] Speaker 01:
You can't tell what it is for that case.

[00:21:53] Speaker 01:
And then you will have every attorney signing every pleading with a carve out saying,

[00:21:59] Speaker 01:
I'm only responsible for this piece.

[00:22:01] Speaker 01:
He's responsible for this piece.

[00:22:03] Speaker 01:
She's responsible for that piece when globally rule 11 provides You need to make sure that when you're signing this what is in here is factually true and accurate and And I would say in this case the part that he was responsible for was one of the very foundations of the case whether or not

[00:22:24] Speaker 01:
the neutral testing occurs in Arizona over the, that was one of the key elements of what they were asserting here.

[00:22:33] Speaker 04:
Just for anticipation as whether or not you could seek discovery from the private companies.

[00:22:38] Speaker 01:
Well, regarding whether or not that software has been tested and subject to neutral testing.

[00:22:44] Speaker 01:
So I mean, the issue to me was about the testing of the software.

[00:22:47] Speaker 03:
As I take the whole, the software involved was the Dominion,

[00:22:52] Speaker 03:
software correct when some fortune in a defamation lawsuit that is correct related to this

[00:23:04] Speaker 01:
Well, yes, I believe that case related to Mike Lindell.

[00:23:08] Speaker 01:
I think that was a related Dominion case, I believe.

[00:23:11] Speaker 01:
Oh, Fox, I'm sorry.

[00:23:12] Speaker 01:
There's several.

[00:23:13] Speaker 03:
This machine that we're talking about is the Dominion machine?

[00:23:18] Speaker 01:
Yes, it's the Dominion.

[00:23:19] Speaker 01:
I mean, there are several different Dominion suites.

[00:23:21] Speaker 01:
That's part of the confusion that was created in this case, was Arizona uses one suite, Georgia used another suite.

[00:23:28] Speaker 01:
But yes, globally, it was Dominion that was at issue.

[00:23:32] Speaker 02:
If I could ask a question that's of concern to me.

[00:23:39] Speaker 02:
Am I correct that we have no prior circuit precedent stating that a person who signs a document of counsel has obligations parallel to the person who's the lead attorney signing?

[00:24:02] Speaker 01:
Yes, Your Honor, I agree.

[00:24:04] Speaker 01:
There is no precedent.

[00:24:05] Speaker 01:
I don't think in any circuit there is any precedent on this.

[00:24:10] Speaker 02:
Okay, so if, for example, I don't know what we're going to decide, but if we were to decide that an of-counsel designation doesn't shield a lawyer in any way from a favor to abide rule 11,

[00:24:33] Speaker 02:
showed that decision and we were going to write an opinion on that to establish the law of the Ninth Circuit.

[00:24:45] Speaker 02:
Would that be properly applied

[00:24:50] Speaker 02:
to Mr., to Professor Dershowitz's case, or would it be better to apply such a rule respectively and to say it would not be applied retroactively to Professor Dershowitz?

[00:25:11] Speaker 01:
Well, I would say that the rule, rule 11 is clear as it stands right now.

[00:25:18] Speaker 01:
Professor Dershowitz was seemingly relying on a non-existent distinction.

[00:25:23] Speaker 01:
He was aware of the claims being made.

[00:25:26] Speaker 01:
So in my opinion, I guess if Professor Dershowitz is saying that his position was reasonable and therefore any new precedent saying that this of council distinction is improper would not apply to him, I think that that's not

[00:25:43] Speaker 01:
appropriate and Professor Dershowitz should have done the analysis at the time he was signing as of counsel and certainly at the point when he received the rule 11 letter.

[00:25:51] Speaker 01:
Does that answer your question, Your Honor?

[00:25:56] Speaker 02:
Yes, it does.

[00:25:57] Speaker 02:
Thank you.

[00:25:58] Speaker 04:
Does rule 11 relate to sanction people that just so clearly go beyond the known norms?

[00:26:03] Speaker 04:
And if this norm was unknown, why should he be punished for that?

[00:26:08] Speaker 01:
I don't see it as unknown because the plain text.

[00:26:12] Speaker 04:
But no case said one way or the other, right?

[00:26:14] Speaker 04:
So it's unknown.

[00:26:15] Speaker 01:
Well, also no case says, you know, that I've signed this pleading as the queen and therefore I don't have to follow rule 11.

[00:26:22] Speaker 01:
The of council distinction has my understanding in researching this once we received this after the sanctions had been awarded because that was the first time that Professor Dershowitz ever raised this.

[00:26:35] Speaker 01:
Is that of counsel is used as a law firm distinction to show whether you are a partner Well, the record shows that he's been using it for like 50 years, right or 40 years or something like that.

[00:26:46] Speaker 01:
Professor Dershowitz?

[00:26:47] Speaker 04:
Yes, and and and for the precise purpose of this.

[00:26:50] Speaker 04:
The district court didn't disagree with that.

[00:26:52] Speaker 01:
I think he said he has been.

[00:26:55] Speaker 01:
It's never been challenged, I don't think, because no one ever asked what that means, why you said it, and what your limited role in this case is.

[00:27:02] Speaker 04:
Can I ask for a follow-up?

[00:27:04] Speaker 04:
Your point about everyone saying, I'm only part, that's a good argument why this rule shouldn't go forward.

[00:27:10] Speaker 04:
Are there any other rules, any other reasons like that, why we shouldn't adopt a rule saying adopt of counsel limits your responsibility under rule 11?

[00:27:20] Speaker 01:
Well, I think that rule 11 to me is the bare minimum you have to abide by when you come into court.

[00:27:29] Speaker 01:
You need to say, I have reviewed this, and I think there is a reasonable basis, and the things in here are true.

[00:27:40] Speaker 01:
And so I think once the court starts carving out exceptions to that role and responsibility for attorneys, it's a slippery slope.

[00:27:51] Speaker 01:
Um, and, and I think that, you know, to the point in the earlier case of, you know, why this is part of attorney's oaths, why this is critically important, why, you know, the role societally that, that courts have, that there's an understanding that

[00:28:08] Speaker 01:
When people come into court and attorneys come into court, they're being truthful.

[00:28:11] Speaker 01:
They have a reasonable basis for what they're asserting.

[00:28:15] Speaker 01:
And that that's something that, you know, societally we rely on, and it's a critical role of the courts.

[00:28:22] Speaker 01:
So to me, carving out exceptions, especially after the fact, like, oh, wait a minute, I guess I didn't let you know what I meant when I said of counsel.

[00:28:31] Speaker 01:
I guess I didn't tell you this is what I meant and this is all I was doing.

[00:28:35] Speaker 01:
It's hugely problematic.

[00:28:41] Speaker 01:
I think with that, I have no other points.

[00:28:43] Speaker 01:
Thank you.

[00:28:44] Speaker 04:
Thank you, your counsel.

[00:28:45] Speaker 03:
Okay.

[00:28:48] Speaker 03:
Mr. Willin, check.

[00:28:49] Speaker 04:
Thank you.

[00:28:51] Speaker 00:
A couple of quick points.

[00:28:52] Speaker 04:
I'm sorry.

[00:28:53] Speaker 04:
Can I just jump in?

[00:28:53] Speaker 04:
Because I thought your friend on the other side made a good point that if we allow these different rules for different lawyers, then everyone's going to say, I'm only responsible for this, I'm only responsible for that, and no one's responsible for the whole thing.

[00:29:07] Speaker 04:
Do you have a response to that?

[00:29:09] Speaker 00:
The lead counsel, I believe, should be responsible for the whole thing, okay?

[00:29:14] Speaker 00:
I don't take it.

[00:29:15] Speaker 04:
But there always has to be lead counsel.

[00:29:17] Speaker 00:
I think so.

[00:29:17] Speaker 00:
There has to be one counsel under the rule that is primarily responsible.

[00:29:21] Speaker 00:
That's what it says.

[00:29:22] Speaker 00:
But let me just hit these quick points, and I know my time is running out, but this is not an after the fact issue.

[00:29:28] Speaker 00:
The rule is clear, and it talks about reasonableness under the circumstances, which counsel doesn't want to acknowledge.

[00:29:36] Speaker 00:
That requires the kind of fact-finding analysis that happened here, and that resulted in a decision, essentially.

[00:29:43] Speaker 03:
Counsel, let me just ask you, what if we had to do that in every case?

[00:29:47] Speaker 00:
Do a mini trial?

[00:29:48] Speaker 03:
No, I mean, you'd be saying the onus is not on the lawyer.

[00:29:52] Speaker 03:
who signs the filing, the onus is on the court to discover what he meant by his use of that filing.

[00:30:00] Speaker 00:
Respectfully, Your Honor, when you get to the point of sanctioning someone, which is an extraordinary relief and doesn't happen every day, but when you get to that point, I contend, I submit, respectfully, you have to have that kind of determination as to what that person's involvement was anyway.

[00:30:16] Speaker 03:
Right, but you would have to do that in every case if we accepted

[00:30:21] Speaker 00:
Where there's sanctions involved, sure.

[00:30:24] Speaker 03:
Well, I mean, you would have to do it before.

[00:30:27] Speaker 03:
You would have to ask, well, who's responsible for which part?

[00:30:30] Speaker 00:
Why?

[00:30:30] Speaker 00:
You only do that when there's sanctions.

[00:30:32] Speaker 00:
You don't just inquire about everybody's role in a case.

[00:30:35] Speaker 03:
But if you want the role to be that if you designate yourself of counsel, that means you're not responsible for the whole thing.

[00:30:45] Speaker 03:
That means you're going to have to figure out what part everybody's responsible for.

[00:30:49] Speaker 00:
Yes, and as I said, I think you should be responsible at the end.

[00:30:52] Speaker 03:
Before the sanctions, before the sanctions, just how can you limit your role if you're going to sign the document?

[00:31:00] Speaker 00:
Because it's clear, factually, that he did limit his role with the lead counsel.

[00:31:04] Speaker 00:
He stated, I'm only going to be responsible for this.

[00:31:07] Speaker 00:
And he didn't want to be of counsel.

[00:31:09] Speaker 00:
The designation was to denote that there is a limited role so that later on, to answer your question, if you get to sanctions, the question is, what was your role?

[00:31:20] Speaker 03:
encountered anyone ever limiting their role in signing the pleadings.

[00:31:26] Speaker 03:
Ever.

[00:31:28] Speaker 03:
Over 25 years on the bench.

[00:31:31] Speaker 00:
What you create then is you're not going to have people like this, perhaps ex-judges as well, giving their input directly into a case for their limited

[00:31:39] Speaker 00:
expertise.

[00:31:40] Speaker 00:
Is that a good thing to achieve?

[00:31:42] Speaker 00:
I think not.

[00:31:42] Speaker 00:
I think the better thing is to take the chance that later on, if there is a sanction, that it becomes clear as it did here in a fact-finding process that he had no role in the other issues that were sanctioned.

[00:31:54] Speaker 00:
Otherwise, he's basically an insurer

[00:31:58] Speaker 00:
against his will, or he doesn't participate at all.

[00:32:01] Speaker 00:
And that's the danger, because he wants to participate.

[00:32:04] Speaker 00:
He wants to advise the court on his expertise.

[00:32:06] Speaker 00:
He wants to be a counsel in the case, but not as to everything he can't be.

[00:32:15] Speaker 00:
Is that a good thing to achieve, Your Honor?

[00:32:16] Speaker 00:
I'd ask the court.

[00:32:17] Speaker 00:
Because I think it's a good thing to achieve to have people with expertise not be fearful of providing that with the understanding that they're going to be responsible.

[00:32:26] Speaker 00:
As I said, we're not arguing that he shouldn't be responsible.

[00:32:30] Speaker 00:
He is responsible for his work.

[00:32:32] Speaker 00:
And if his work is implicated, then clearly he should be sanctioned.

[00:32:36] Speaker 00:
But the record is clear that that wasn't the case in this case.

[00:32:41] Speaker 00:
Any other questions, Your Honor?

[00:32:43] Speaker 03:
Judge Gold?

[00:32:45] Speaker 03:
Thank you.

[00:32:46] Speaker 03:
Thank you very much.

[00:32:49] Speaker 02:
I have no further questions.

[00:32:51] Speaker 03:
Okay.

[00:32:53] Speaker 03:
All right.

[00:32:54] Speaker 03:
Lake versus gates number 23 16 0 3 2 3 is submitted.