The Lawletter Vol 46 No 5
Recently, the Appellate Division of the New York Supreme Court suspended the law license of Rudy Giuliani, pending a fuller hearing in In re Giuliani, 197 A.D.3d 1, 146 N.Y.S.3d 266 (2021). Without getting mired in any of the political ramifications the suspension of Giuliani may trigger, this ruling provides a useful procedural and substantive framework for evaluating the limits of advocacy by attorneys, both inside and outside of a courtroom.
In this case, multiple complaints were filed before the New York Attorney Grievance Committee ("AGC") based primarily on alleged false statements made by Giuliani in various filings before multiple courts as well as statements made to the press and before other groups during the course of his representation of Donald Trump and the Trump Campaign. The AGC is the administrative entity charged with investigating allegations of attorney misconduct in violation of the New York Rule of Professional Conduct, 22 NYCRR 1240.7, upon receipt of a written complaint. One of the procedural mechanisms available to the AGC is to motion to the Appellate Division a request for interim suspension when "uncontroverted evidence of professional misconduct" has been demonstrated. 22 NYCRR 1240.9(a)(5). While the result in Giuliani was an immediate suspension, attorneys retain the right to a complete investigation and hearing. 22 NYCRR 1240.9(c); see Annotation, Validity and Construction of Procedures to Temporarily Suspend Attorney from Practice, or Place Attorney on Inactive Status, Pending Investigation of, and Action upon, Disciplinary Charges, 80 A.L.R.4th 136 (1990 & Supp.).
Giuliani's suspension was based on false and misleading statements made in a variety of settings, highlighting an attorney's continuing obligation not to engage in demonstrably false conduct while advocating on behalf of his or her client.
False Statements in the Course of Representation Made to Third Persons
Of particular importance to the AGC were the numerous statements made by Giuliani outside of a courtroom while representing his client that appeared to violate RPC 4.1. "In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person." NY ST RPC Rule 4.1. Numerous false or misleading statements made to third parties were identified by the AGC:
- While representing his client in connection with Pennsylvania litigation, Giuliani repeatedly stated that more absentee ballots were received than had been requested. Giuliani made repeated statements that only 1,823,148 absentee ballots were sent out before the election, while 2,589,242 absentee ballots were received. In fact, Pennsylvania could verify that more than three million absentee ballots were requested, making Giuliani's assertions false. These false statements were repeated during a public radio broadcast, before a Republican State Senate Committee hearing in Pennsylvania, during a Michigan House Oversight meeting, and on several podcasts. Giuliani's only defense before the AGC for these false statements was that members of his defense team provided the false information, and, thus, he lacked knowledge that the statements were false when he made them. He failed to produce any evidence in support of his defense.
- Another category of false statements addressed by the AGC were the public representations made in support of his client that dead people were registered and improperly cast ballots. At various times, he misrepresented that over 8,000 dead people had voted in Philadelphia, Pennsylvania, while at other times he stated that more than 30,000 had voted. The misrepresentations were made at the Four Seasons Total Landscaping press conference and then again at the Republican State Senate Majority Policy Committee meeting in Pennsylvania.
- In connection with the Georgia election, Giuliani made false statements concerning Dominion Voting Systems' voting machines by asserting that the machines were manipulating the vote tallies. A hand count of the ballots in Georgia revealed those allegations to be false. He also claimed in different statements that 65,000 or 66,000 or 165,000 underage voters had been permitted to cast ballots. The Georgia Secretary of State investigated the public allegation and located four requests for ballots by underage voters, but each voter turned 18 by the time of the election. Giuliani represented to the AGC that he made those statements in reliance on the opinion of an expert, but he failed to present any such opinion evidence to the court or to provide any guidance to the court concerning the qualifications of his unproduced expert report.
- Giuliani publicly asserted on different occasions and during various podcasts that either 800 or several thousand dead people voted in the Georgia election. Again, after an investigation by the Georgia Secretary of State, it was found that two ballots may have been improperly cast in the name of dead people.
- Another false representation involved an alleged video that depicted Georgia election officials improperly counting mail-in ballots. Giuliani publicly represented he had seen the video in its entirety and that it showed mail-in ballots being improperly retrieved from suitcases stored under tables. The actual video showed the mail-in ballots in boxes in the room where the votes were being tallied, with election officials present and without any suitcases. No misdeeds were evidenced. The video was later edited to show short snippets of Giuliani's assertions of improper conduct by the individuals tabulating the ballot. When these representations were challenged by the AGC, Giuliani argued that a reasonable person would believe that improper conduct was depicted. The court thoroughly rejected that assertion as implausible.
- Finally, during a meeting with legislators in Arizona and subsequently repeated during numerous podcasts, Giuliani asserted that "a few hundred thousand," "way more than 10,000" "40,000 to 50,000" or "32,000" illegal immigrants cast ballots in Arizona. When challenged on the accuracy of his assertions, Giuliani admitted he "did not have the best information" on the number of illegal aliens who voted, and he raised a report by a consultant, yet again he failed to present to the court any evidence in support of his assertions.
False and Misleading Statements to a Tribunal
Under RPC 3.3,
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.
NY ST RPC Rule 3.3(a)(1).
Giuliani made an appearance, pro hac vice, in Donald J. Trump for President, Inc. v Boockvar (Boockvar), 502 F. Supp. 3d 899 (M.D. Pa.), aff'd, 830 F. App'x 377 (3d Cir. 2020), in the U.S. District Court for the Middle District of Pennsylvania. In the original complaint, claims of fraudulent canvassing practices were alleged. However, the plaintiff voluntarily withdrew those claims before the hearing before the court. Despite the withdrawal of the claims, Giuliani repeatedly represented to the court that he was pursuing a fraud claim. Even after Giuliani's co-counsel agreed with opposing counsel that no fraud claims were before the court, Giuliani again asserted that he was incorporating all 150 paragraphs of the factual recitation into the claim before the court, which included, in his words, wide-spread fraudulent process so that a fraud claim was before the court. Later in the proceeding, when being questioned by the court about whether the amended complaint had pleaded fraud with particularity, Giuliani stated: "And it doesn't plead fraud. It pleads the—it pleads the plan or scheme that we lay out in paragraphs 132 to 149 without characterizing it." At the close of the hearing, the parties on both sides were permitted to present additional briefs to the court, and Giuliani again represented to the court that the claim involved the fraudulent canvassing practices that had been withdrawn by the plaintiff.
By misrepresenting the nature of the proceeding before the court, Giuliani's conduct violated RCP 3.3. Since the hearing was being broadcast to the public, the same action also constituted a violation of RCP 4.1, false statements made to third parties, and RCP 8.4, engaging in conduct involving fraud, deceit, dishonesty, or misrepresentations.
When taken together, the court concluded that the sheer number of flagrantly false factual statements made during the course of his representation of his client adversely reflected on Giuliani's fitness to be a lawyer, pursuant to RCP 8.4(h). The two factors addressed by the court to determine if an interim suspension was justified was whether the misconduct was serious in nature and whether it was continuing. Giuliani's continuous repetition of false statements involving the results of a national presidential election were sufficiently serious in nature to warrant an interim suspension by the court. The court discounted Giuliani's assurance that since the election was over, he would no longer be making comments concerning the case. However, after the AGC filed its motion, Giuliani continued to repeat the facially false comments on several podcasts. The court therefore granted the motion for interim suspension.
As to all charges, Giuliani asserted that the investigation infringed on his First Amendment rights. The court thoroughly rejected this defense, noting that attorneys have an ethical obligation not to make false or misleading statements during the course of their representation.