Philadelphia-based solo practitioner Linda Kerns said in a filing Sunday that the message she received from the unidentified Kirkland associate, whom the firm has said is not working on the case, criticized her for working on behalf of the Trump campaign and ran afoul of professional conduct rules, making it deserving of punishment from the court.
"It is sad that we currently reside in a world where abuse and harassment are the costs of taking on a representation unpopular with some," Kerns' motion said. "It is sanctionable when that abuse and harassment comes from an elite law firm representing the secretary of state. An appropriate sanction should issue — one which deters such misconduct in the future."
While Kerns said she'd provided opposing counsel with the message and offered to provide a copy to the court, she did not detail its contents in her filing aside from characterizing it as "abusive."
A copy of the message was not immediately available.
Kirkland disputed Kerns' characterization in its own filing over the issue on Monday.
"That associate was acting unilaterally, in his personal capacity, without the knowledge or authorization of undersigned counsel or the firm," the firm said in a filing signed by partner Daniel Donovan. "The firm expects that every lawyer will conduct themselves with the highest standards of professional conduct, including being respectful of and courteous to other members of the bar."
Aside from the associate's message, Kerns told the court that she's faced "continuous harassment" since filing suit on behalf of the Trump campaign in federal court last week, alleging that Pennsylvania ran a "two-track" election that unconstitutionally favored Democrats.
Trump was declared the loser of Pennsylvania last weekend, and he trails former Vice President Joe Biden by nearly 70,000 votes in the state.
Kerns had originally sued alongside a pair of Pittsburgh-based attorneys with Porter Wright Morris & Arthur LLP, but the firm withdrew its representation late Thursday in the face of backlash against firms involved in Trump's efforts to delegitimize election results in states across the country.
After hearing from the Kirkland associate, however, Kerns said she felt the need to ask the court to hold the firm responsible.
"It is one thing for members of the public to break the laws of decorum, or even laws of Pennsylvania or the United States, by engaging in such harassment ... but it is another thing for a lawyer [for the commonwealth's] outside counsel to do so," she said. "It is quintessentially the court's role to police and appropriately sanction law firms appearing in front of it for such conduct."
Donovan said in his filing that he became aware of the voicemail when he was contacted by Kerns on Sunday afternoon, and that he promised to look into it as the phone number associated with the call wasn't one that he recognized.
After confirming that the message had indeed come from a Kirkland associate, he said that he called Kerns on Sunday evening and "told her that the voicemail was discourteous and not appropriate."
Kerns, however, said that Kirkland's response to the incident was insufficient.
"In general, every lawyer at a firm is counsel to every client of that firm," she said in a reply brief on Monday. "Yet one of the world's largest law firms thinks its very size excuses the conduct of one of its lawyers. But size is not a defense."
Hours after filing her reply in the case on Monday, Kerns followed in Porter Wright's footsteps in withdrawing from the case.
In her place, she said that the Harrisburg-based Marc Scaringi would be taking over representing the Trump campaign.
A spokesperson for Kirkland declined to comment when contacted Monday, while Kerns did not immediately return a message seeking comment.
The Trump campaign is represented by Linda Kerns of the Law Offices of Linda A. Kerns LLC.
Pennsylvania is represented by Daniel T Donovan, Susan M. Davies and Michael A. Glick of Kirkland & Ellis LLP, and Daniel T. Brier, Donna A. Walsh and John B. Dempsey of Myers Brier & Kelly LLP.
The case is Donald J. Trump for President Inc. et al. v. Boockvar et al., case number 4:20-cv-02078, in the U.S. District Court for the Middle District of Pennsylvania.
--Editing by Adam LoBelia.
Update: This story has been updated to note that Kerns filed to withdraw from the case on Monday evening.
For a reprint of this article, please contact reprints@law360.com.
