What You May Have Overlooked in the Giuliani Decision

This article was originally published July 2, 2o21.

The decision by New York’s Appellate Division, First Judicial Department in Matter of Rudolph W. Giuliani, 2021 WL 2583536 (App. Div. 1st Dep’t June 24, 2021), was a true tour de force. The Court picked apart, point-by-point, the numerous misrepresentations Mr. Giuliani made on behalf of his clients, former President Trump and the Trump Campaign, about supposed fraud in the presidential election, and indefinitely suspended Mr. Giuliani from practicing law pending a full hearing. A great deal of ink has been spilled in the popular and legal press in describing the decision, and I will not repeat that here.

As someone who drafted one of the disciplinary complaints against Mr. Giuliani, which I submitted on behalf of New York State Bar Association Past-President Michael Miller, the New York County Lawyers Association, and approximately 60 New York bar leaders and academics, I could not have been more pleased at the result. (See the complaint here.) But I did bristle at the suggestion by many commentators that the Court’s decision was political, a hatchet job by Democrat judges against a once-powerful Republican – or two once-powerful Republicans, if we count Mr. Giuliani’s client. Those who make that claim miss two central points about Mr. Giuliani’s behavior, cited in the Court’s decision, which are all too familiar to those of us who regularly represent lawyers in the disciplinary process, and which make it clear that Mr. Giuliani is not being treated in any special way.

First

, as the Court explained, once the Attorney Grievance Committee had met its burden of showing prima facie evidence that Mr. Giuliani had knowingly made false and misleading statements about supposed election fraud, the burden shifted to Mr. Giuliani to demonstrate there was a “legitimate dispute” about whether the statements were in fact false. Giuliani, 2021 WL 2583536 at *3. Mr. Giuliani utterly failed to meet that burden. As described in footnote 4 of the Court’s opinion [id. at *3], Mr. Giuliani referred to various affidavits he supposedly had obtained to support his fraud claim, but either would not or could not produce them. He claimed to have received information from a “confidential informant,” but could not explain why he, as a private lawyer, was entitled to conceal the informant’s identity on that basis. He referred 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.” Id. (emphasis added).The simple fact was that when asked for evidence to support his allegations, he produced nothing. He did not just fail to support all of his allegations; he failed to support any of them. Even if his allegations were not so serious, there is no attorney disciplinary body in the land that would find it acceptable for a lawyer accused of violating the ethics rules against making false statements (N.Y. Rules of Prof’l Conduct 3.1, 4.1 and 8.4(c)) to remain silent when asked to support the truth of those statements, much less to refuse to produce evidence he claims to have on spurious grounds of confidentiality. The Court had to perceive Mr. Giuliani’s decision to do this without even an attempt at an apology as just plain disrespectful. Like any disrespectful litigant, he paid the price. There is nothing remotely political about this.

Second

, Mr. Giuliani’s disrespect for the disciplinary process did not end there. The Court made a point that Mr. Giuliani repeated several of his false statements about electoral fraud on his radio show, Chat with the Mayor, in March and April 2021, after the motion for interim suspension had been brought. See, e.g., Giuliani, 2021 WL 2583536 at *6 (on March 4, March 11 and March 14, repeating false account that former heavyweight champion Joe Frazier is on Philadelphia voter rolls), *8 (on April 27, repeating false claim that thousands of underage voters had illegally voted in Georgia), *9 (on April 7, challenging Georgia Secretary of State’s statement that “only potentially two votes were cast in the name of dead voters” despite having no evidence to the contrary). With a motion to discipline him for making false statements pending, and with no evidence to back those statements up, he continued to repeat them. Any disciplinary body would view this as reckless at best, a deliberate slap in the face at worst. Again, no politics there.

Caught up with Mr. Giuliani’s perceived lying about the election, most commentators missed that the Court was reacting not just to the Mr. Giuliani’s misconduct while representing his clients, but also to his cavalier attitude toward the disciplinary process itself. The Court made no secret that this influenced its decision. See, e.g, Giuliani, Slip Op. at 30 (“The risk that respondent will continue to engage in future misconduct while this disciplinary proceeding is pending is further borne out by his past, persistent and pervasive dissemination of these false statements to the media. . . . [These statements] continued after this motion was brought, and despite respondent facing imminent suspension from the practice of law”) (emphasis added). In this, the Court treated Mr. Giuliani exactly as it would any other disciplinary respondent.

The practical lessons are simple. Treat the disciplinary authorities with respect. Be as transparent as you can be. Act with remorse, not defiance. If you play with fire, you’re going to get burned – just as Mr. Giuliani did.