By Edward McIntyre
On June 24, 2021, a New York court immediately suspended Rudi Giuliani’s law license, based on “uncontroverted evidence that [he] communicated demonstrable false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer for former President Donald J. Trump and the Trump campaign in connection with Trump’s failed effort at reelection in 2020.”
Immediate Interim Suspension
The court’s authority to impose interim license suspension—admittedly a “serious remedy”—is available only where “immediately necessary to protect the public from the respondent’s violation of the Rules, ” based on uncontroverted evidence of professional misconduct. [22 NYCRR 12409[a][5].]
California’s State Bar Court also has authority to order involuntary inactive enrollment—interim suspension—if it finds a lawyer has caused or is causing substantial harm to the lawyer’s clients or the public, with reasonable probability that Chief Trial Counsel will prevail in the underlying discipline matter and the lawyer will be disbarred. [Business and Professions Code section 6007(c)(2).]1
The Grounds for Giuliani’s Interim Suspension
At issue in Giuliani’s case are New York’s rule 3.3—false statement of fact or law to a tribunal—rule 4.1—false statement of fact or law to a third person—and rule 8.4(c)—conduct involving dishonesty, fraud, deceit or misrepresentation—and 8.4(h)—conduct adversely reflecting on the lawyer’s fitness as a lawyer.
California’s rule 3.3 mirrors New York’s; our rule 4.1 adds the qualifier, “material,” before “fact or law”; our rule 8.4(c) modifies “misrepresentation” with “reckless or intentional.” Otherwise, California’s rules parallel New York’s. California did not adopt a rule 8.4(h).
First Amendment Defense
Giuliani argued the disciplinary rules were unconstitutional as applied to his speech, an argument the court rejected. The court observed the disciplinary proceeding concerned professional restrictions imposed on him as a lawyer, obligated not knowingly to misrepresent facts and make false statements in connection with his representation of a client. “Speech by an attorney is subject to greater regulation than speech by others.” [Gentile v. State Bar of Nevada, 501 U.S. 1030, 1051 (1951).] The court observed, as officers of the court, lawyers are “an intimate and trusted and essential part of the machinery of justice” [Gentile, supra at p. 1072] such that the public perceives lawyers to be in a position of knowledge and “a crucial source of information and opinion.” [Gentile, supra at p. 1056.] Thus, a weighty responsibility is reflected in the “ultimate purpose of disciplinary proceedings [which] is to protect the public in its reliance upon the integrity and responsibility of the legal profession.” [Matter of Nearing, 16 AD2d at 518.]
Burden of Proof
The Attorney Grievance Committee that sought suspension had the burden, in the first instance, to establish the falsity of Giuliani’s statements; then the burden shifted to him. The court, however, rejected Giuliani’s vague references to affidavits he did not provide, “confidential informants” he did not name and “hundreds of witnesses, experts, and investigative reports, none of which [he] provided or identified.” [Court’s order, p. 9, fn. 4.]
The False Statements
The court proceeded to catalogue Giuliani’s false public, factual statements: about Pennsylvania’s election results; to the District Court for the Middle District of Pennsylvania that his client was pursuing a fraud claim; that “dead” people voted in Pennsylvania; that Dominion Voting Systems, Inc’s voting machines manipulating tallies in Georgia; that felons voted illegally in Georgia; that Georgia election officials engaged in illegal counting of mail-in ballots; that “illegal aliens” voted in Arizona, among others.
Immediate Threat to the Public
The court recognized this case is unique. It found, however, (1) immediate threat to the public in evidence of continuing misconduct—Giuliani’s statements even after the Committee filed its application for his interim suspension and the ongoing audit in Maricopa County—(2) that the underlying offense is “incredibly serious”—the country being torn apart by continued attacks on the legitimacy of the 2020 election—and (3) that the uncontroverted misconduct will likely result in substantial permanent sanctions when the disciplinary proceedings conclude.
The court summarized its conclusion about the public harm of Giuliani’s false statements:
Where, as here, the false statements are being made by respondent, acting with the authority of being an attorney, and using his large megaphone, the harm is magnified. One only has to look at the ongoing present public discord over the 2020 election, which erupted into violence, insurrection and death on January 6, 2021 at the U. S. Capitol, to understand the extent of the damage that can be done when the public is misled by false information about the elections. …This event only emphasizes the larger point that the broad dissemination of false statements, casting doubt on the legitimacy of thousands of validly cast votes, is corrosive to the public’s trust in out most important democratic institutions.
California
Would Chief Trial Counsel ever argue, and the State Bar Court agree, that similar uncontroverted facts warranted interim suspension here? A word to the wise ….