Giuliani, Temporary Suspension, Due Process, and “Political Speech”

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Lest anyone think the temporary suspension of former Mayor Rudy Giuliani was a violation of his constitutional rights to due process or free speech, the facts and law are to the contrary. Since the 1986 landmark New York Court of Appeals case, Matter of Padilla,1 later codified in the New York Rules for Attorney Disciplinary Matters2, lawyers here (and in most U.S. jurisdictions) have been subject to immediate, temporary suspension, without formal charges and an evidentiary hearing, if there is sufficient proof, ab initio, that their misconduct constitutes an immediate danger to the bar and the public. While it is certainly true that many of these cases involved stealing client funds, that certainly does not alter the fact that courts can and will temporarily suspend lawyers for a variety of misdeeds so long as the misconduct warrants such treatment.3 The burden is on the petitioning Attorney Grievance Committee (AGC), but notably—and in consideration of “due process” concerns—the respondent lawyer always has an absolute right to be heard following receipt of a petition and before imposition of discipline. The decision of the Appellate Division interimly suspending Giuliani makes clear that he was given that opportunity and did, in fact, submit a response.4

Under the New York rule governing temporary suspensions, a respondent lawyer may be suspended from practice “upon a finding by the Court that the respondent has engaged in conduct immediately threatening the public interest.”5 The rule sets forth various bases for such a finding, including, as here, “uncontroverted evidence of professional misconduct.”6 In short, the evidence must demonstrate that (1) the misconduct was “uncontroverted” and, (2) the misconduct posed a serious threat of harm to the bar and the public.

Addressing the first point, the Court found that the public record of Giuliani’s persistent, false allegations of election fraud, on behalf of a client, before a federal court and on many occasions in the public arena, violated various New York Rules of Professional Conduct (RPCs). Those RPCs specifically proscribe engaging in acts of dishonesty before courts7 and third persons8, or in general9. The Court detailed specific instances of Giuliani’s misconduct in violation of the referenced RPCs, all of which indisputably occurred while representing Donald J. Trump and/or the Trump campaign,10 including:

  • falsely stating that in the Commonwealth of Pennsylvania more absentee ballots came in during the election than were sent out before the election;
  • falsely representing to the United States District Court for the Middle District of Pennsylvania that his client was pursuing a fraud claim, when indisputably it was not;
  • falsely stating that thousands of dead people, including the famous heavyweight boxer Joe Frazier, who died in 2012, “voted” in Philadelphia;
  • falsely stating that Dominion Voting Systems Inc.’s voting machines manipulated the vote tallies in Georgia to support his narrative that votes were incorrectly reported;
  • falsely claiming at various times that 65,000 or 66,000 or 165,000 underage voters illegally voted in the Georgia 2020 election;
  • falsely stating that more than 2,500 Georgia felons voted illegally;
  • falsely claiming that thousands of dead people voted in Georgia during the 2020 presidential election;
  • falsely stating that thousands of “illegal aliens” voted in Arizona during the 2020 presidential election.

Apparently, though given fair notice, Giuliani was unable to produce any credible evidence to refute the allegation that he repeatedly lied about purported instances of election fraud. Assertions that someone else told him something, or that he read something from an unspecified “reliable source,” simply won’t cut it in a court of law. An attorney’s subjective claim of “good faith” belief is just not enough; the asserted belief must have an objectively reasonable and credible foundation in fact. Because Giuliani’s explanations were not supported, for purposes of the interim suspension rule his misconduct was “uncontroverted.”

Whether the misconduct posed a serious, immediate threat to the bar and public, such that a temporary suspension was warranted, is the second element. As to this required showing, the Court recounted the pattern of lies that continued even after Giuliani had notice of the AGC’s petition—an astounding circumstance in itself—and concluded that such behavior was likely to continue notwithstanding the potential for discipline. The final few pages of the Court’s opinion focus keenly on the harm that Giuliani’s misconduct has done and is doing to the bar and the public, indeed, to the democratic process.11 The idea that a lawyer can tell lie after lie about a fundamental aspect of democracy—free and fair elections—plainly is likely to diminish confidence in voting. Prior to this proceeding, Giuliani occupied in the legal system a much higher position of trust than many other lawyers, let alone regular citizens. Therefore, his false and repeated pronouncements that the election was “stolen,” with a very big megaphone and on behalf of a now former, unhappily defeated president, is simply intolerable.

Which brings us to the last point. Some commentators who disagree with the Court’s opinion have accused the Court of violating Giuliani’s First Amendment rights (I have already addressed the “due process” issue). Did his conduct amount to no more than “political speech” protected by the First Amendment? The answer has to be “no” for the following reasons.

As critics have recognized, lawyers do not enjoy the full protection of the First Amendment, whether appearing before a tribunal or otherwise.12 There are many instances in the RPCs where this is manifest. For example, “zealous advocacy” does not extend to, inter alia: knowingly counseling or assisting a client to engage in illegal or fraudulent conduct;13 knowingly engaging in frivolous litigation;14 making an extrajudicial statement knowing that it will be disseminated to the public and have a substantial likelihood of materially prejudicing an adjudicative proceeding;15 making a false accusation against a judge;16 engaging in dishonesty, fraud, deceit or misrepresentation.17 Such statements or behaviors cannot be equated with “political speech.” No court has to date ruled that these limitations on lawyer speech violate the First Amendment.

Furthermore, Giuliani repeatedly proclaimed that he was representing a client as lead counsel in legal efforts to overturn the election. He then appeared in court, and made numerous false statements to the public in that context. His false claims were not statements of opinion or reflective of political views; they were lies told about dead people voting, rigged voting machines, fraudulent ballots, and the like. Context matters. Content matters. The foregoing procedures and rules of legal ethics have long been on the books. Whether they are being selectively enforced, as some critics also claim, is the subject of another debate, but assuredly the Appellate Division, First Department—which, parenthetically, has a long history of imposing discipline on powerful lawyers18—got it right this time.

Reprinted with permission from the July 13, 2021 edition of the New York Law Journal ©2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 – reprints@alm.com or visit www.almreprints.com.

Endnotes

Hal R. Lieberman, formerly chief counsel to the Departmental Disciplinary Committee, First Department (predecessor to the current Attorney Grievance Committee), is a partner at Emery Celli Brinckerhoff Abady Ward & Maazel LLP.

1. 67 N.Y.2d 440 (1986).

2. 22 NYCRR § 1240.9. In finding that interim suspensions were within the Appellate Divisions’ power, the New York Court of Appeals relied on Judiciary Law §90(2). During the years following Padilla, each of the Appellate Divisions promulgated rules providing for the interim suspension of lawyers. Subsequently, the statewide Rules for Attorney Discipline Matters, effective October 1, 2016, harmonized the Appellate Divisions’ rules concerning interim suspensions.

3. See, e.g., Matter of Truong, 2 A.D.3d 27 (1st Dep’t 2003) (uncontested evidence that attorney offered a forged lease into evidence, gave false testimony in support of that document, and initiated frivolous litigation, temporarily suspended on the ground that his behavior constituted an immediate threat to the public interest).

4. Matter of Giuliani, 2021 WL 2583536 (1st Dep’t, June 24, 2021) (citing Giuliani’s affidavit in opposition to the AGC’s petition).

5. 22 NYCRR § 1240.9(a).

6. 22 NYCRR § 1240.9(a)(5); see, e.g., Matter of Szegda, 22 A.D.3d 103 (1st Dep’t 2005) (subpoena of attorney’s bank records provided uncontested evidence that the attorney engaged in professional misconduct immediately threatening the public interest).

7. RPC 3.3 provides: “(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.”

8. RPC 4.1 provides: “In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person.”

9. RPC 8.4 provides: “A lawyer or law firm shall not… (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”

10. See Matter of Giuliani, 2021 WL 2583536 at **3–10.

11. Id. at **30–32.

12. See Alan M. Dershowitz, Giuliani’s Suspension from the Law is Unconstitutional, thehill.com, June 28, 2021 (conceding that “courts have long held that a lawyer is not entitled to the full protection of the First Amendment for statements made in court”).

13. RPC 1.2(d) provides: “A lawyer shall not counsel a client to engage, or assist a client, in conduct the lawyer knows is illegal or fraudulent, except that the lawyer may discuss the legal consequences of any proposed course of conduct with a client.”

14. RPC 3.1(a) provides: “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.”

15. RPC 3.6(a); see Gentile v. State Bar of Nevada, 501 U.S. 1030, 1051 (1991).

16. RPC 8.2(a) provides: “A lawyer shall not knowingly make a false statement of fact concerning the qualifications, conduct or integrity of a judge or other adjudicatory office or a candidate for election or appointment to judicial office.” See Matter of Holtzman, 78 N.Y.2d 184 (1991) (attorney disciplined for public dissemination of a false accusation of improper judicial conduct), see also Hal R. Lieberman, Should Lawyers be Free to Publicly Excoriate Judges?, Hofstra L. Rev. 785 (1998).

17. See note 9, supra.

18. See, e.g., Matter of Nixon, 53 A.D.2d 178 (1st Dep’t 1976); Matter of Mitchell, 40 N.Y2d 153 (1976); Matter of Cohn, 118 A.D.2d 15 (1st Dep’t 1986); Matter of Friedman, 196 A.D.2d 280 (1st Dep’t 1994).