Harvard Law School professor emeritus Alan M. Dershowitz is appealing a federal court ruling ordering him to pay $12,200 in sanctions for his role in a 2022 lawsuit on behalf of failed Arizona governor candidate Kari Lake.
U.S. District Court Judge John Tuchi ordered Dershowitz to pay the sanctions in July for signing onto a lawsuit brought by Lake and former Arizona State Rep. Mark Finchem seeking to ban the use of electronic voting machines in the state’s 2022 midterm elections.
The suit was later dismissed, and Maricopa County filed for sanctions on the grounds that the lawsuit violated Rule 11, which says that an attorney cannot file a lawsuit for an “improper purpose” and must have sufficient legal and factual evidence.
Dershowitz filed his notice of appeal in July and must submit an opening brief to the Ninth Circuit Court of Appeals by Oct. 30.
Dershowitz has long had a complicated legacy at Harvard Law School. He began teaching at the Law School in 1964 — at the age of 25 — and is referred to on the HLS website as “the best-known criminal lawyer in the world.” Recently, however, Dershowitz has received criticism from HLS affiliates for his involvement in both former President Donald J. Trump’s and Harvey Weinstein’s legal defense teams and his alleged ties to Jeffrey Epstein.
In his July decision, Tuchi found that Dershowitz had limited involvement in the lawsuit — writing one paragraph and signing his name to the complaint— and only required him to pay 10 percent of the overall sanctions to Lake’s legal team.
Dershowitz said in an interview with The Crimson earlier this month that he plans to take the case to the Supreme Court if need be.
“I’m prepared to do whatever is necessary,” he said.
One of Dershowitz’s lawyers, Jack D. Wilenchik, confirmed that Dershowitz’s legal team plans to file its brief by the end of October, but added that he doesn’t expect a decision soon.
“The Ninth Circuit can sort of sit on things. They have a tendency to do that,” Wilenchik said.
While the lawsuit concerned the gubernatorial election as a whole, Dershowitz’s contribution had a narrower scope. Wilenchik explained that Dershowitz only weighed in on the need for public access to the records of voting machine companies.
“It was a very limited issue of whether companies that do work for the government, like that Dominion Voting Systems company, are subject to public records inspection,” Wilenchik said.
In the interview, Dershowitz defended the legal argument he contributed to the lawsuit.
“My basic point is you don’t use machines unless the machine company behaves like the government, with transparency,” Dershowitz said. “That’s right.”
Given this limited contribution, Dershowitz argued that he wasn’t required to verify that the rest of the lawsuit was sound.
“I added my paragraph as a constitutional lawyer,” Dershowitz said. “Not as a lawyer that deals with facts.”
Dershowitz also explained that he once received advice from legal ethics expert Monroe Friedman — who died in 2015 — that signing “of counsel” rather than “counsel,” as he did in this case, on a legal brief would allow him to sign his name without taking on responsibility for the overall content of the lawsuit.
In his decision, Tuchi dismissed this distinction.
“Whether Mr. Dershowitz signed, or intended to sign, those filings as ‘counsel’ or ‘attorney’ or ‘of counsel,’ he signed them,” Tuchi wrote. “And he effectively conceded that he authorized his signature on these filings without investigating whether they were legally and factually sound.”
Dershowitz expressed confusion about the ruling.
“I still don’t understand what the court thinks I did wrong,” he said.
Dershowitz said this case had significant stakes for “the ability of older, semi-retired lawyers who have great narrow expertise in one area to write small portions of the brief or the complaints, or any kind of legal document and not be responsible for all the investigation.”
“If I write something I want the public to know I wrote it, and I want to be responsible for it,” Dershowitz said. “But I don’t want to be responsible for things I didn’t write or didn't undertake any responsibility for.”
Nancy J. Moore, a professor at Boston University Law School focused on professional responsibility, said she thought the ethics rule in question did apply to this case.
“Rule 11 of the Federal Rules of Civil Procedure is very clear. It says when you’re an attorney and you sign a pleading, you are certifying that to the best of your knowledge, you have conducted a reasonable investigation, and that these pleadings are well-founded, and that he signed and there’s no exception,” she said. “He signed and there’s no exception.”
Moore said that Dershowitz could have contributed his work and simply not signed on to the lawsuit.
“You can do the work. You can get paid for the work that you do,” she said. “There’s a lot of lawyers working on this case — only a small number of them signed the brief.”
Moore also said she believes Dershowitz is not motivated by the financial aspect of the sanctions.
“He’s someone who has a fairly big ego,” Moore said. “He doesn’t like any attack on his reputation.”
For his part, Dershowitz called the case a “very dangerous decision” that could imperil the role of experts contributing written portions of lawsuits.