Monday, June 28, 2021

New York Court imposes interim suspension on Rudy Giuliani

 As I am sure you know by now, last week the First Judicial Department of the Courts in New York imposed an interim suspension on Rudy Giuliani for alleged violations of Rule 3.3(a), 4.1, and 8.4(c), all of which deal with dishonesty and makes false statements having found uncontroverted evidence that Giuliani communicated "demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer."  The court concluded that Giuliani's conduct warranted an interim suspension because the conduct "immediately threatens the public interest."  

Giuliani argued, first, that the investigation into his conduct violates his First Amendment right of free speech, and, second, that even if his statements were false, he did not make the statements knowing they were false when he made them.  The court rejected both arguments.  

Even though the court did not hold a hearing, the parties had the chance to file briefs to support their positions.  The court found that the disciplinary counsel met its burden to prove that Giuliani made false and misleading factual statements and then commented on whether Giuliani's argument demonstrated that there is some legitimate dispute about whether the statement is false or whether the statement was made by him without knowledge it was false.  The court concluded he did not. 

Conclusory or vague arguments will not create a controverted issue as to whether there has been misconduct. Consequently, once the AGC has established its prima facie case, respondent’s references to affidavits he has not provided, or sources of information he has not disclosed or other nebulous unspecified information, will not prevent the Court from concluding that misconduct has occurred

Evidently, Giuliani's "defense" followed the same tactics he used when making his claims of voter fraud.  He made assertions but provided no proof or credible evidence to support them.  Was he trying to prove that his original lies were not lies, by using more lies to "prove" it?  Who knows?   As the court explains,

In opposition to this motion, respondent refers to affidavits he has not provided. He also relies on a “confidential informant”. We do not understand, nor does respondent explain why, as a private attorney seemingly unconnected to law enforcement he would have access to a “confidential informant” that we cannot also have access to. At yet another point respondent claims he relies on a Trump attorney who chooses not to be identified. Respondent also refers to hundreds of witnesses, experts, and investigative reports, none of which have been provided or identified and an Excel spreadsheet, also not provided, purportedly listing the names of thousands of deceased voters who allegedly cast ballots in Michigan. [citations omitted.]

I think the allegations against Giuliani are supported by the alleged facts. In particular, I think there is enough proof to impose discipline for his conduct before tribunals and legislative bodies.  That is, proof that he engaged in frivolous litigation and that he engaged in conduct involving dishonesty, fraud, deceit or misrepresentation.  

Having said that, let's talk about this "interim suspension" business.  Notice that the decision of the court is not to discipline Giuliani, but to prevent Giuliani from practicing law temporarily while the court decides whether to prevent him from practicing law permanently.  That's what an interim suspension means.  

This type of interim suspension is always a possibility; but it is rarely used for the type of conduct involved in this case.  More often it is used as a means to prevent harm (often imminent harm) to clients.

Knowing this, the court justified the interim suspension by claiming that Giuliani's conduct poses a risk to the public; the implication being that the public needs protection from Giuliani's lies.  Is that convincing?   Citing the “risk that respondent will continue to engage in future misconduct while this disciplinary proceeding is pending,” here is how the court justified it:

The hallmark of our democracy is predicated on free and fair elections. False statements intended to foment a loss of confidence in our elections and resulting loss of confidence in government generally damage the proper functioning of a free society. When those false statements are made by an attorney, it also erodes the public’s confidence in the integrity of attorneys admitted to our bar and damages the profession’s role as a crucial source of reliable information. It tarnishes the reputation of the entire legal profession and its mandate to act as a trusted and essential part of the machinery of justice. [Citations omitted.]

Is this convincing?  Consider this excerpt from an Op-ed in The Washington Post:

A New York appellate court has temporarily suspended former mayor Rudolph Giuliani’s law license, writing that he had made “demonstrably false and misleading statements to courts, lawmakers and the public at large.” Just as lawyers who participated in the Watergate scandal were held to account, so too should former president Donald Trump’s lawyers pay a price if they engaged in illegal or unethical conduct. As this case continues, however, the disciplinary agency and courts should be careful not to chill lawyers’ political speech.

As the case goes forward, courts should think more deeply about the First Amendment question. It is unlikely that the public credits media personalities who are attorneys more than others, or that, when these attorneys are caught in lies, the public sees it as a reflection on the entire legal profession. It seems likely, for instance, that the harm from Giuliani’s lies resulted from his proximity to the former president rather than his status as a lawyer.

Lawyers have the right as private citizens to engage in political debate. This includes a right to lie about the government — not because lies are desirable, but because it is too dangerous to give the state the power to determine which statements are true or false when it comes to political speech. Robust political debate would be chilled because people would fear misspeaking. Efforts to expose government wrongdoing would be abandoned out of concern about retribution.

You should read the full opinion suspending Giuliani here.

Obviously, the opinion has gotten a lot of press coverage.  Here are some links: New York Times, Law & Crime, Courthouse News Service, Politico, NPR, Above the Law, The Guardian, Law & Crime (again), ABA Journal, and The Legal Profession Blog.

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