Friday, July 28, 2023

Why did Rudy Giuliani concede that he made false and defamatory statements about the plaintiffs in a defamation case, thus conceding the elements of the claim?! -- UPDATED

 Last Tuesday Rudy Giuliani filed a two-page stipulation in a long-running defamation lawsuit by two Georgia election workers stating that he “does not contest” that his statements about the plaintiffs were “false” and “carry meaning that is defamatory.”  According to the reporting, Giuliani’s attorney added that Giuliani was not in fact “admitting” to the plaintiffs’ allegations against him but making a decision to stop contesting them, which he says should end the plaintiffs’ effort to seek further factual evidence – emails, text messages and other communications – from Giuliani.

Unfortunately for Giuliani, that’s not how anything works.

First of all, trying to make a distinction between conceding the allegations and not contesting them is nonsense.  You can’t have it both ways.  In the document, Giuliani conceded that he made the statements alleged in the complaint, that the statements were false and that they were defamatory per se.  That means he conceded all the elements of the cause of action. Period, end of story.  All Giuliani has left after that is arguing affirmative defenses.  And which ones are there?  I don’t see any.  

He apparently claims that either the statements were statements of opinion or that they were constitutionally protected.  Both arguments are wrong.  

Once he admits that the statements he made were “false” he has admitted they were not opinions.  By definition opinions can’t be true or false – that’s what distinguishes them from statements of fact.  But Giuliani has conceded they were statements of fact.  So that argument is out - he defeated it himself!  

The other possible argument – that the statements were constitutionally protected, is also flawed.  First, the notion of defamation is based on the doctrine that not all speech is protected and that if it is not protected, it can result in possible liability.  That’s what defamation law is all about.  So the question becomes whether the plaintiff can meet the standard needed to show that the speech is not protected and, therefore, should subject the defendant to liability.

On that, the doctrine has created different standards for different categories of plaintiffs.  If the plaintiff is a public official or a public figure, the plaintiff has to meet a higher standard because speech about them is more protected.  But the plaintiffs in this case were neither.  They were private persons performing a volunteer job as election officials.  I could be wrong about this, but I don’t think they were elected officials for that job, and they were not known celebrities before the elections and before Giuliani and others started accusing them of misconduct.  If I am correct in those assumptions, the plaintiffs in this case do not have to show actual malice on the part of the defendant and will have an easier time defeating the argument that the statements were constitutionally protected.   

Second, Giuliani can’t just say that he wants to end discovery because he does not want to disclose more information.  Discovery exists to allow the parties access to information and, as everyone knows, discovery is not limited to evidence that can be used at trial.  You can use discovery to get access to evidence that will likely lead to evidence that can be used at trial.  In this case, the plaintiffs may want to use discovery to determine if there are other potential defendants they can go after or to discover support for a claim for punitive damages, for example.

The fact Giuliani says he is conceding the elements of the claim to end the plaintiffs’ effort to seek further factual evidence just makes me wonder what he has that wants to hide so badly. 

And, further, defamation was not the only claim in this case.  The plaintiffs’ also sued for emotional distress which is a separate cause of action and they should have the right to continue discovery in order to get evidence related to that claim, which should include the evidence that Giuliani apparently does not want them to get access to.

For these reasons, it seems to me the decision to concede the elements of the defamation cause of action was not a very smart one.  It defeats one of his defenses, makes it easier for the plaintiffs to support their claim and should not stop discovery.

Finally, as an aside, I also can't imagine that publicly admitting that he lied in a way that caused so much injury to private individuals is going to help Giuliani's chances to avoid discipline in the various disciplinary proceedings he is facing.

For coverage of Giuliani's confession see Politico, NPR, MSNBC, The Guardian, The Hill, The Conversation and Above the Law.

UPDATE 8/9/23:  As expected, the judge did not buy it.  See here.

UPDATE: 9/3/23:  The Court has now entered a judgment by default against Giuliani and ordered him to pay attorneys' fees and other sanctions.  The case will now proceed to trial on the question of damages only which is likely to result in a very high verdict for the plaintiffs.  Go here for my post on this new development.

Wednesday, July 26, 2023

Article: "The Supreme Court’s excuses for ethics violations insult our intelligence"

 Steven Lubet (Northwestern) has published a short article called "The Supreme Court’s excuses for ethics violations insult our intelligence." 

California may make "civility" an actual duty under the Rules of Professional Conduct

I teach my students to remember the basic duties owed to clients by thinking of bad grades:  "and F, a D and a bunch of Cs."  The first two letters stand for fiduciary duty, diligence.  The bunch of Cs stand for competence, communication, confidentiality, candor, commingling and conflicts.  But I also tell them that there is another C, which is not really covered in the rules of conduct but that is important and that is "civility."

Now comes news that at its meeting on July 20, 2023, the State Bar of California’s Board of Trustees approved a proposal that calls for amendments to the Rules of Professional Conduct to make incivility a basis for discipline. 

It will be interesting to see what comes of it.  Other suggested changes are more symbolic than anything but this one would be substantive and the drafters of the amendments will have to be careful defining civility and managing the connection with offensive but constitutionally protected speech or expressive conduct.

The Legal Profession Blog has more details here

Tuesday, July 25, 2023

Oklahoma court: past sexual relationship between judge and prosecutor entitles criminal defendant to new trial; should more cases be reversed?

An Oklahoma court recently held that the fact that a judge and a prosecutor were involved in a sexual relationship during the beginning stages of a murder trial entitles the defendant to new trial.  The ABA Journal has the story here.  

You can read the court's opinion here.

If the relationship had been ongoing during the trial, this result would not be surprising, of course.  In this case, the judge and prosecutor were in a relationship during the initial stages of the case only.  The trial itself happened two or three years later. 

One interesting question is whether the judge and the prosecutor should be subject to discipline for concealing the relationship while it was ongoing.  The judge resigned his judgeship in spring 2021—after the prosecutor and two other lawyers accused him of sexual misconduct.

The judge acknowledged sexual relationships with two prosecutors, but he said they were consensual.  A special prosecutor declined to bring charges in connection with the allegations.

Now I wonder if all the criminal cases tried by those prosecutors and presided by the judge should be looked into.  If I were a criminal defense lawyer, I would look to see if I had represented any defendants during the years that they had ongoing relationships.

Thursday, July 20, 2023

Federal public defenders warn budget cuts may threaten their ability to represent clients

 NPR reports that federal public defenders warn budget cuts may threaten their ability to represent clients. Go here for the full story and here for a short audio report on the story.

Wednesday, July 19, 2023

Comment on the newly adopted rule mandating reporting of misconduct by other lawyers in California

 Here is a comment on the newly adopted rule in California that requires disclosure of another lawyer's misconduct, a la Model Rule 8.3.  Read the comment here.

Tuesday, July 18, 2023

More on the sanctions for Alan Dershowitz

 A few days ago I reported that a federal judge imposed sanctions on Alan Dershowitz and other lawyers for Kari Lake (former Arizona gubernatorial candidate) for violations of Rule 11 of the Federal Rules of Civil Procedure.  See here and here.

Today, Above the Law has a follow up on the story.  

The original order stated in part that 

Plaintiffs either failed to conduct the reasonable factual and legal inquiry required under Rule 11, or they conducted such an inquiry and filed this lawsuit anyway. Either way, no reasonable attorney, “after conducting an objectively reasonable inquiry into the facts and law, would have found the complaint to be well-founded.”

In response to Dershowitz's request to let him off the hook, the judge stated that,

Whether Mr. Dershowitz signed, or intended to sign, those filings as “counsel” or “attorney” or “of counsel,” he signed them. And he effectively conceded that he authorized his signature on these filings without investigating whether they were legally and factually sound. If there was any doubt this brought him within the ambit of Rule 11, the evidence detailed above demonstrates that all parties involved understood the value of his signature. It was an agreed-upon part of his retention. It led opposing counsel and the public to believe he represented Plaintiffs in this matter—a notion furthered by Plaintiff Lake and Mr. Lindell themselves. Mr. Dershowitz did not do anything to dispel this notion until after the Maricopa County Defendants moved for sanctions. Further, he participated in at least one telephonic conference with opposing counsel; . . .

Timetable set for Giuliani disbarment procedure in Washington DC

The Legal Profession Blog is reporting today that Rudolph Giuliani has noted his exception to the disbarment recommendation of a District of Columbia Hearing Committee and that the The Board on Professional Responsibility has now set a briefing schedule, as follows:

Respondent's brief is due on September 28, 2023.

Disciplinary Counsel's response is due on October 16, 2023.

Respondent's reply brief is due on October 23, 2023.

Oral argument is expected to be held in November 2023.

Stay tuned!

Monday, July 17, 2023

Should this lawyer be subject to discipline in Illinois?

Back in 2013, the Illinois Supreme Court decided in a case called In re Karavidas, 999 N.E.2d 296 (Ill. 2013), that the state could not subject a lawyer to discipline for conduct outside the practice of law unless the state could make a case that the conduct was a violation of a specific rule of professional conduct.  As the court explained:

    . . . we hold that professional discipline may be imposed only upon a showing by clear and convincing evidence that the respondent attorney has violated one or more of the Rules of Professional Conduct. Mere bad behavior that does not violate one of the Rules is insufficient.

    . . . . [B]efore professional discipline may be imposed . . . , the [State] must demonstrate that the attorney violated the Rules of Professional Conduct. To the extent that any of our prior cases suggest that an attorney may be subjected to professional discipline for conduct that is not prohibited by the Rules of Professional Conduct or defined as misconduct therein, we hereby [overrule those cases].  . . . Personal misconduct that falls outside the scope of the Rules of Professional Conduct may be the basis for civil liability or other adverse consequences, but will not result in professional discipline. 

The court wanted to put an end to disciplinary actions brought on tenuous charges based on claims of conduct unbecoming the profession, or conduct that tarnished the image of the profession, etc., which is not surprising since other jurisdictions have moved away from the old "appearance of impropriety" standard too. 

And this is why this bit of news caught my eye:  a disciplinary complaint has been filed in Illinois against a lawyer for inappropriate harassing conduct directed at the staff of a law library.  

I am not in any way suggesting that the conduct was not inappropriate, or objectionable.  In fact, maybe it was criminal - I don't know.  What I am suggesting is that the complaint does not seem to be consistent with the principle set in Karavidas.

You can read the complaint here, but if you are looking for the specific rule of professional conduct allegedly violated you won't find it until the very end of the last paragraph of the complaint, almost as an afterthought.  And that rule is 8.4(d) which relates to conduct prejudicial to the administration of justice.  

Here is paragraph 19 of the complaint:

    . . . Respondent has engaged in the following misconduct: conduct that is prejudicial to the administration of justice, by conduct including, but not limited to, touching the head and hair of H.M., a Will County Courthouse law library employee, without her consent in March 2021; telling an employee of the Clerk’s office to “eat shit and die;” asking a female employee of the Clerk’s office to have dinner with him; and making a comment to the effect of “If I were 55 years younger, I would get with her,” about C.S., a law student-judicial extern, to a group of judicial externs; resulting in disruption to Courthouse operations and necessitating the use of Courthouse resources to investigate Respondent’s conduct and to place restrictions on Respondent’s access to Courthouse facilities, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010).

Again, I agree that the conduct was inappropriate, and may be the basis for some form of liability.  What I am wondering is whether it meets the requirements set forth by the Court in Karavidas.  At first sight, it does since the complaint is clearly using a Rule of Conduct to claim the basis for discipline.  But I would expect someone to raise the questions as to whether the conduct is the type of conduct to which that rule should apply.

I always thought of the notion of "prejudicial to the administration of justice" as conduct that interfered with a court's ability to properly conduct a proceeding.  But maybe my understanding is too limited in that way.  Or, on the other hand, maybe the argument in the complaint is trying to stretch the concept a little bit too far.  What do you think?

Or, maybe what this shows is that we need a new rule, because you might be wondering why the disciplinary agency did not charge the attorney with a violation of a rule like Model Rule 8.4(g).  

The answer to that question is that Illinois has not adopted Model Rule 8.4(g) because when the ABA adopted Model Rule 8.4(g), Illinois had a preexisting rule regulating conduct deemed to constitute discrimination or harassment.  The problem is that Illinois' rule is of limited applicability and would not apply to the facts of this case.  You can find it here under 8.4(j).

So, if the conduct in this case is something that ought to be the subject of professional discipline, maybe a well drafted version of Rule 8.4(g) should be adopted to deal with conduct like the one in this case rather that trying to stretch the interpretation of the meaning of "the administration of justice" in Rule 8.4(d).  

Of course, what constitutes a "well drafted" version of Model Rule 8.4(g) is still up for grabs, and before the courts, and would be the subject of a different and long conversation.  For my posts on that subject you can click here and scroll down, but to save you the research, let me just say that I think the Model Rule is vulnerable to a Constitutional attack, and that I think the rule in New York is the best drafted one I have seen yet.  

Sunday, July 16, 2023

Kari Lake’s team ordered to pay more than $122,000 in sanctions for frivolous lawsuit

Following up on my previous post, Alan Dershowitz was not the only lawyer for Kari Lake ordered to pay sanctions for what the court deemed to be a violation of Rule 11 of the Federal Rules of Civil Procedure.  

A couple of days ago, The Hill reported that Kari Lake’s legal team (collectively)  must pay $122,200 in sanctions after a federal court in Arizona found that the former Republican gubernatorial candidate’s lawsuit contesting voting methods was “frivolous.”

The Hill has the story here.

Alan Dershowitz hit with order to pay $12,220 in attorneys fees for his participation in what court deemed to be a frivolous claim

Back in May I reported that the Arizona Supreme Court imposed sanctions on Republican gubernatorial candidate Kari Lake’s lawyers for false claims about voter fraud in the 2022 election.  

Now comes news that a federal judge has ordered Alan Dershowitz to pay attorneys fees as sanctions for violating Rule 11 of the Federal Rules of Civil Procedure.  Courthouse News Service has the story here, stating that "[d]espite playing what Dershowitz described as an extremely limited role in Lake’s suit against the Arizona secretary of state and supervisors of both Maricopa and Pima counties, U.S. District Judge John Tuchi ordered him to pay $12,220 in attorney’s fees to the Maricopa County defendants for breaking Rule 11 . . ."

Monday, July 10, 2023

Update on Trump lawyers: Lin Wood retires to avoid disbarment; Hearing committee recommends disbarment for Giuliani -- CORRECTION!!

This is a corrected version of a post from yesterday:

The list of lawyers for the Trump campaign (or for Trump himself) that are under investigation keeps getting longer.  John Eastman, Sydney Powell, Jeffrey Clark, and Jenna Ellis, among others, have been in the news recently.

So today I am writing to report on two developments this week.

First, you may remember attorney Lin Wood who was sanctioned by a court in Michigan.  (see herehere and here) and who was facing an investigation in Georgia for his involvement in Trump's campaign's attempts to overturn the last presidential election.  (He was also famous for filing a motion in which he claimed it was based on "plenty of perjury," but that is another story).

This week it was reported that, rather than face disbarment, Wood has filed a petition to retire from his practice in Georgia.  As discussed in an article in Above the Law
If granted leave to retire, this would end the career of a once-respected attorney whose decision to embrace MAGA craziness dragged him into an ethical quagmire that he had little hope of ever escaping. Rudy Giuliani’s fall from crusading U.S. Attorney to getting his law license yanked and making ends meet on Cameo is rightfully the most dramatic instance of a lawyer throwing away everything for Trump’s adoration, but Wood’s not far off.

And speaking of Rudy Giuliani, the second report of the day is that last week a Washington, D.C.-based bar discipline hearing committee recommended that Giuliani should be disbarred for “frivolous” and “destructive” efforts to derail the 2020 presidential election in support of former President Donald Trump.

You can read the report here.  The case will now go before the Board on Professional Responsibility.  

Obviously, this means that this is not the end of the case.  Giuliani has the right to appeal and the case will likely make its way to the courts eventually.

The committee, comprised of D.C. attorneys tasked with reviewing Giuliani’s conduct, deliberated for months after a weeks-long series of hearings that featured testimony from Giuliani and several of his close associates.

For coverage on Lin Wood's retirement you can check out MSNBC, Above the Law,, Courthouse News Service, NPR, The Hill, Lex Blog, The ABA Journal and the New York Times.

For coverage of Giuliani's case, you can check out MSNBC, Jurist, Lex Blog, Politico, Courthouse News Service, Above the Law, The Hill, and the Legal Profession Blog.

Sunday, July 9, 2023

Mississippi says poor defendants must always have a lawyer, but few courts are ready to deliver

A rule requiring poor criminal defendants to have a lawyer throughout the criminal process took effect last week.  The Marshall Project has the details on the story here.

Sunday, July 2, 2023

California approves rule mandating reporting of misconduct by other lawyers (similar to Model Rule 8.3)

 Last January I posted that California was moving closer to adopting a "self-reporting rule" a la Model Rule 8.3 (see here and here).

Today I am writing to report that the rule has now been officially adopted.  You can read the court order and the text of the approved rule here.

Lawyer Ethics Alert Blog has coverage here.

Ethical Grounds has a comment here.