June 24th, 2021

Giuliani Suspended from Practicing Law

Rudy Giuliani

Racing around the interwebs today is the fact that New York has suspended Rudy Giuliani from practicing law. It’s an interim suspension — he hasn’t had a hearing yet. That is a tough thing to get in New York, but it happened for two reasons: The “uncontroverted claims of professional misconduct” and his “conduct immediately threatens the public interest.”

The fundamental issues regarding the claims of misconduct deal with his assertions of voter fraud in Pennsylvania, Georgia and Arizona. Over and over again he screamed fraud. The Appellate Division (First Department) wrote that 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.”

The problem, of course, is that when lawyers make statements of fact in their capacity as a lawyer (not in their capacity as the Tooth Fairy or April Fool’s hoakxster) we are expected to have evidence to support our statements.

For the vast majority of people, lying about the election might well be protected First Amendment speech (unless with pitchforks and torches inland, storming the castle Capitol is urged. But that’s for another day.)

But the First Amendment doesn’t apply the same way if you are handed the privilege of representing people in court. You get something but there is a price for it. We are not free to lie to a court. The Court here wrote:

“It is long recognized that “speech by an attorney is subject to greater regulation than speech by others”. Unlike lay persons, an attorney is “a professional trained in the art of persuasion” . As officers of the court, attorneys are “an intimate and trusted and essential part of the machinery of justice”. In other words, they are perceived by the public to be in a position of knowledge, and therefore, “a crucial source of information and opinion.”

So while the lawyer hat is on, we play by different rules. We still have our First Amendment rights to spew nonsense if we like, just not while wearing that particular chapeau.

The Court then launches into a dizzying and well-documented array of particulars regarding his conduct in Pennsylvania, Georgia and Arizona. It’s a helluva list that includes his conduct at Four Seasons Total Landscaping, boxer Joe Frazier, claims of dead people voting, boxes or suitcases of ballots under desks and thousands of undocumented voters.

The Court painstakingly discusses how each was utterly and completely unsupported by evidence. One example of many is claiming that Pennsylvania mailed out 1.82M absentee ballots but that 2.59M were counted. This was false. In fact, 3.08M had been set out.

But being wrong is one thing. Repeating it after learning you were wrong is a different story. The Court wrote: “Notwithstanding the true facts, respondent repeatedly advanced false statements that there were 600,000 to 700,000 fabricated mail-in ballots, which were never sent to voters in advance of the election.”

The Court then proceeds to document numerous times he made the false statements after learning they were false. And continued making false claims even after the Attorney Grievance Committee brought this motion against him!

The Court went on to document his false claims that tens of thousands of dead people voted in Philadelphia.

In Georgia, Giuliani claimed to have “hundreds of pages of affidavits and declarations …that document gross irregularities…” including tens of thousands of underage voters. He produced nothing. Nada. Bupkus.

And in Arizona he made utterly unsubstantiated comments that tens of thousands of undocumented people had voted, despite the fact that “no statewide check on undocumented noncitizens had been performed.”

While the hearing hasn’t been held, Giuliani did have an opportunity to be heard on the interim suspension. There was a motion and he failed to come up with the goods. Likely because he doesn’t have them.

While many will write stories about this event it is the evidence part that really jumped off the page. Lawyers are supposed to have it when making claims. Giuliani claimed he had it. But he couldn’t produce it. And he did it with his lawyer hat on.

The second part of the decision deals with conduct threatening the public interest, because lying alone isn’t generally likely to lead to a suspension before a hearing (though the courts are pretty damn sensitive when it comes to client funds). One of the standards a court may use is “conduct immediately threatening the public interest.” (22 NYCRR 1240.9[a])

At this point the Court gets to the heart of the matter, that Giuliani was using his lawyer’s fedora to undermine both the practice of law and faith in the legal profession, and democracy itself, with his lies. And that includes the January 6 insurrection :

The hallmark of our democracy is predicated on free and fair elections. False statements intended to foment a loss of confidence in our elections and resulting loss of confidence in government generally damage the proper functioning of a free society. When those false statements are made by an attorney, it also erodes the public’s confidence in the integrity of attorneys admitted to our bar and damages the profession’s role as a crucial source of reliable information (Matter of Nearing, 16 AD2d at 516). It tarnishes the reputation of the entire legal profession and its mandate to act as a trusted and essential part of the machinery of justice (Ohralik v Ohio State Bar Assn, 436 US at 447). Where, as here, the false statements are being made by respondent, acting with the authority of being an attorney, and using his large megaphone, the harm is magnified. One only has to look at the ongoing present public discord over the 2020 election, which erupted into violence, insurrection and death on January 6, 2021 at the U.S. Capitol, to understand the extent of the damage that can be done when the public is misled by false information about the elections. The AGC contends that respondent’s misconduct directly inflamed tensions that bubbled over into the events of January 6, 2021 in this nation’s Capitol. Respondent’s response is that no causal nexus can be shown between his conduct and those events. We need not decide any issue of “causal nexus” to understand that the falsehoods themselves cause harm. This event only emphasizes the larger point that the broad dissemination of false statements, casting doubt on the legitimacy of thousands of validly cast votes, is corrosive to the public’s trust in our most important democratic institutions.

The misrepresentations are so well documented that I am guessing that he will end out with a real suspension after a hearing, or disbarment. He will get another shot to defend, he will have competent counsel, but this will be an uphill battle for him. If he had evidence that he was merely mistaken, and not fabricating crap, he would have laid that on the table.

A final note, and I can’t help but think that this was a significant factor in deciding to suspend before a hearing: Giuliani claimed in his response that he is not a threat “because he has and will continue to exercise personal discipline to forbear from discussing these matters in public anymore. He also claims that because legal matters following the 2020 election have concluded, he will no longer be making any statements about the election under the authority of being an attorney.”

And yet, the Court found that, “Notwithstanding respondent’s claim that he has exercised self-restraint by not publicly commenting on the election, there are numerous instances demonstrating the opposite.”

The Court found, “We cannot rely on respondent’s representations that he will exercise restraint while these proceedings are pending.”

If there’s one thing a Grievance Committee really, really hates, it’s when lawyers lie to them.



April 29th, 2021

Stupid Lawyer Tricks – Insurrection Edition

Screen grab from NBC News a moment before Babbitt was shot

Ashli Babbitt was shot dead on January 6th while crashing through the Capitol in an attempt to stop electoral votes from being counted. Now her Estate wants to sue the Capitol Police and the (as yet unnamed) officer for wrongful death.

This is, perhaps, one of the dumber ideas I have heard. Sue the very people charged with defending the republic while you are part of a crowd trying to violently overthrow it? Seriously?

I get phone calls with some frequency about bad cases. I wrote several years ago that the most important word for a personal injury lawyer is “no.” That hasn’t changed.

And bringing a wrongful death suit for the passing of a child — regardless of the context — is fraught with more than the usual emotion. The worst are those that come in the context of suicide, and the question presented is why a doctor did not render the proper treatment in the days/weeks/months before.

And the one thing that must be absolutely, 100% crystal clear is this: The client will never be happy. Never. Ever. It is impossible if a child was lost.

And now we add in a case that can’t possibly be won before a court or jury. Will the lawyers be doing it solely for the publicity? I’ve probably known hundreds of personal injury lawyers here in New York. I can’t think of one that would bring such a suit.

Worse yet for the family is that the Babbit Estate may face a counterclaim for intentional infliction of emotional distress if the officer who shot her has suffered as a result. Few would be surprised if he had post-traumatic stress syndrome.

Such cases are very difficult to win because of the exceptionally high bar that needs to be cleared to get there. But the (New York) rule is that it must be:

“One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress” (Restatement [Second] of Torts § 46 [1] [1965]).”

In fact, as of 1993, the standard was so high that the Court of Appeals wrote (Howell v. NY Post) “of the intentional infliction of emotional distress claims considered by this Court, every one has failed because the alleged conduct was not sufficiently outrageous.”

The Court of Appeals in NY wrote that “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”

Assuming the same standard applies wherever suit ends up being brought, would a violent insurrection satisfy that?

The Capitol Police will never settle. If the suit survives a motion to dismiss or motion for summary judgment because of disputed facts, they will lose at trial.

This can only end badly for the family of Ashli Babbitt. There is no other possible ending.

And the Estate (to the extent it has any assets) could be on the hook for damages to the officer who shot her. Just because a family wants to sue does not mean a lawyer should enable such destructive conduct.