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profession" (Matter of Nearing, 16 AD2d at 518). While there are limits on the extent to which a lawyer's right of free speech may be circumscribed, these limits are not implicated by the circumstances of the knowing misconduct that this Court relies upon in granting interim suspension in this case (see Kathleen M. Sullivan, The Intersection of Free Speech and the Legal Profession: Constraints on Lawyers’ First Amendment Rights, 67 Fordham L Rev 569 [1998] available at https://ir.lawnet.fordham.edu/flr/vol67/iss2/11/ [last accessed June 1, 2021]). 3 Respondent also raises lack or absence of knowledge as a general defense, stating that even if his statements were false or misleading, he did not make the statements knowing they were false when he made them. We agree that the Rules of Professional Conduct only proscribe false and misleading statements that are knowingly made. Both rules 3.3 and 4.1, expressly provide for an element of knowingness. Rule 8.4 (c), however, contains no such express element. In New York there are no cases which directly hold that a violation of rule 8.4(c) must be knowing, although there is authority that implies it. In a Federal case applying New York’s Rules, the court found that there was a violation of rule 8.4(c) where false statements made by the offending attorney were not inadvertent, but were knowing (Matter of Gilly, 206 F Supp 3d 940, 944 [SD NY 2016]). This Court thereafter imposed reciprocal discipline based on that finding (Matter of Gilly, 149 AD3d 230 [1st Dept 2017]). Sister state jurisdictions have held that knowledge is a required element of misconduct in violation of rules identical to RPC Notably, at least one Federal court has recently determined attorney efforts to undermine a legitimate presidential election warranted the attorney's referral to the grievance committee (Wisconsin Voters Alliance v Pence, 2021 WL 23298, *2, 2021 US Dist LEXIS 127, *4-6 [DDC Jan. 4, 2021 Civil Action No. 20-3791 (JEB)], and 2021 WL 6359, *1, 2021 US Dist LEXIS 35064, *6 [DDC Feb. 19, 2021]). 3 7

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In the Matter of Rudolph W. Giuliani, an Attorney (United States)

Judgment

Question Presented: Whether Mr. Giuliani’s conduct, as a lawyer perpetuating false statements about widespread voter fraud during the 2020 United States presidential election, violated New York's professional rules of conduct?

Alleged Acts: During the 2020 United States presidential election, candidate and president at the time, Donald J. Trump, hired Rudy Giuliani as his personal attorney. The Attorney Grievance Committee relies on claims that Mr. Giuliani made false and misleading statements casting doubt on the integrity of the 2020 presidential election results. These statements were made at press conferences, state legislative hearings, podcasts, radio broadcasts, television appearances, and one court appearance. On November 17, 2020, Mr. Giuliani appeared as the attorney for Donald J. Trump at the U.S. District Court for the Middle District of Pennsylvania. He was admitted to practice law pro hac vice based on his New York license. Mr. Giuliani claimed to be pursuing a fraud claim when he was not. Mr. Giuliani persisted to allege conclusory claims of nationwide voter fraud in Pennsylvania and other jurisdictions over the course of several years. Additionally, outside the courtroom at state legislatures, radio stations, and podcasts, Mr. Giuliani claimed there were fewer absentee ballots were mailed to voters than the total number of absentee ballots recorded in the 2020 election, which was false. Furthermore, Mr. Giuliani repeatedly stated there were 600 to 700 thousand fabricated mail-in ballots that were never sent to voters prior to election day. Mr. Giuliani also repeatedly stated that dead people “voted” in the city of Philadelphia to discredit the results of the vote. Among other instances, Giuliani falsely claimed that there was video evidence depicting the State of Georgia election officials illegally counting mail-in ballots. Mr. Giuliani then made false and misleading statements that “illegal aliens” voted in Arizona during the election. All of these claims were an attempt to continue the narrative that the election was stole from his client, Donald J. Trump.

Procedural history: Attorneys licensed to practice law in New York are subject to professional rules of conduct. Each department of the Appellate Divisions of the New York Supreme Court (the district courts in New York) is responsible to enforce the professional rules of conduct. The Attorney Grievances Committees in each jurisdiction are charged with investigating misconduct various means. If the Attorney Grievance Committee concludes the lawyer may face discipline, the matter is brough before the Appellate Division. The Court is then responsible for reviewing the record and determining whether any misconduct occurred, and if so, the appropriate discipline. Sometimes, the Committee may make a motion for an attorney’s interim suspension, a serious remedy only available when it’s deemed necessary to protect the public from the lawyer’s violation of the professional rules of conduct. The standard in finding an interim suspend is based on the uncontroverted evidence of professional conduct. Uncontroverted attorney misconduct occurs in a few scenarios: (1) when a lawyer makes a false statement of face to a tribunal, while representing a client or law to a third person (2) when a lawyer engages in conduct involving dishonest, fraud, deceit, or misrepresentation, or (3) when a lawyer engages in any other conduct that adversely reflects on the lawyer’s fitness to practice.

Summary: The Attorney Grievance Committee held that Mr. Giuliani “communicated demonstrably 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.” Such false statements improperly bolstered Mr. Giuliani’s narrative that widespread voter fraud resulted in his client, President Donald J. Trump, losing the 2020 U.S. presidential election. Mr. Giuliani argued that the investigation into his conduct violates his First Amendment right of free speech. He simply did not attack the constitutionality of the professional rules, but that they are unconstitutional as they apply to him. The court responded that speech by an attorney is held to a higher standard of regulation than speech by others due to their responsibility to ensure the integrity of the legal profession is maintained. Mr. Giuliani also argued that even if his statements were false and misleading, he did not make them knowing they were false. The court agreed with Giuliani that the rules of professional conduct in question only proscribe statements that are knowingly made, as shown in rules 3.3 and 4.1 However, rule 8.4(c) contains no requirement of knowledge. Overall, Mr. Giuliani’s arguments did not change prevent the committee from further finding violations of professional misconduct to warrant interim suspension of his license to practice law.

Conclusion: Mr. Giuliani’s conduct is a threat to public interests and therefore, warrants interim suspension from practicing law, pending further proceedings before the Attorney Grievance Committee.

Legal Issue(s)

Disputing Results
Electoral Integrity

Applicable Law(s): New York Rules of Professional Conduct, rule 3.3; rule 4.1; & rule 8.4.

Region: Americas

Country: United States of America

Language of Decision

English

Court: Trial Court

Election Type: Presidential

Date of decision: Jun 24, 2021

Geolocation

Latitude: 38.90371529

Longitude: -77.06409858

: Geolocation

Primary Documents

Matter of Giuliani (2021-00506) PC.pdf
English
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Election Judgments - IFES

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In the Matter of Rudolph W. Giuliani, an Attorney (United States)

Primary Documents

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