Statement of New York City Bar Association Concerning Grievance Complaints Filed Against Rudolph Giuliani

In prior statements and reports, the New York City Bar Association detailed “the continuing actions of Trump Administration officials to undermine the rule of law in our nation,” and called on “all members of our profession” to fulfill their “indispensable role . . . in restoring the rule of law and renewing our nation’s commitment to compliance with law by those entrusted with governmental power.”[1] Since the Association issued those statements, a number of professional disciplinary complaints have been brought against attorneys who participated in the Trump campaign’s efforts to overturn the Presidential election results and, in effect, subvert our democratic system of government.[2]

Several of these disciplinary complaints have been brought against Rudolph Giuliani, who is licensed to practice law in the State of New York.  Most notably, these include a complaint brought by Michael Miller, the past President of both the New York State Bar Association and the New York County Lawyers’ Association, and other current and past Bar leaders from throughout New York State (the “Miller Complaint”), and another brought by a non-partisan organization named Lawyers Defending American Democracy that has as its purpose to foster adherence to the rule of law (the “LDAD Complaint”).

The complaints against Mr. Giuliani allege serious misconduct.  They do so in great detail, and appear to be substantiated by extensive evidence – consisting in large part of Mr. Giuliani’s own statements.   They describe a pattern of misconduct that Mr. Giuliani engaged in both inside and outside the courtroom with the purpose of subverting a Presidential election, culminating in his speech on a podium at the Ellipse in Washington DC on January 6, 2021 when he urged a crowd of angry Trump supporters to engage in “trial by combat.”[3]  These allegations require a serious investigation, a hearing, and, if the allegations are substantiated, the imposition of appropriate discipline.[4]

The Association believes that it is important for the public to understand the basis for the disciplinary complaints that have been filed, and the disciplinary process that will be followed in connection with those complaints.

II. THE DISCIPLINARY COMPLAINTS

All attorneys, from the newest members of the bar to the most eminent and senior, are bound by law and by the oath they take when admitted to abide by the rules of professional conduct in force in the jurisdictions where they are admitted and to support the Constitution of the United States.[5]  As New York’s highest court has repeatedly emphasized, the purpose of these rules, and “the primary concern of a disciplinary proceeding is the protection of the public in its reliance on the integrity and responsibility of the legal profession.”[6]  As described in the Miller and LDAD Complaints, an attorney – particularly one of notable public stature – undermines these principles when s/he participates in an all-out assault on a free and fair Presidential election based on misrepresentation and mischaracterization of the facts.

The ethical rules against which Mr. Giuliani’s conduct will be measured are the New York Rules of Professional Conduct, or to the extent that the misconduct occurred in courts of other jurisdictions, the ethical rules applicable in those jurisdictions.  The specific rules at issue in the complaints against Mr. Giuliani are discussed below and include, among others, those that prohibit an attorney from knowingly making a false statement,[7] filing frivolous litigation,[8] or otherwise engaging in conduct that is prejudicial to the administration of justice or that adversely reflects on the lawyer’s fitness as a lawyer.[9]  These rules establish a floor below which a lawyer’s conduct may not fall without being at risk of discipline.[10]

The New York courts have not hesitated to impose discipline on attorneys whose conduct has fallen below the floor established by the rules.[11]  Discipline is not reserved for situations where the attorney’s misconduct takes place in the courtroom.  Instead, the rules extend to all of an attorney’s activities — particularly acts that are prejudicial to the administration of justice and/or adversely reflect on the lawyer’s fitness as a lawyer.[12]  For instance, in one recent, highly publicized example a New York attorney was publicly censured for going on a racist rant in a deli.[13]  While the conduct at issue there was reprehensible, and the Association condemns it, that conduct did not approach the scope of Mr. Giuliani’s alleged misconduct in attempting to undermine the outcome of a Presidential election.

1. The Lawyers Defending American Democracy Complaint

The LDAD Complaint alleges that Mr. Giuliani engaged in a nationwide public campaign[14] to convince the general public and the courts of massive voter fraud and a stolen Presidential election, despite the fact that he had no evidence to support these sweeping claims.  LDAD alleges that Mr. Giuliani engaged in baseless litigation seeking to invalidate millions of votes in battleground states, gave false testimony before state legislators in both formal and informal hearings, used a false narrative of voter fraud to try to persuade the public that Vice President Pence should refuse to certify the electoral vote count (which he lacked authority to do under the United States Constitution), and incited a crowd about to march on the Capitol to engage in “trial by combat.”

LDAD further alleges that Mr. Giuliani lacked any evidence to support his public assertions of widespread election fraud and even admitted in at least one court that there was no evidence of fraud.[15]  Moreover, while more than 60 lawsuits were filed challenging the election results, the courts dismissed every one of those cases except one that did not involve voter fraud and dealt with whether election observers had to stand 6 feet from poll workers counting ballots.[16]

The LDAD Complaint focuses, in particular, on Mr. Giuliani’s role in Trump v. Boockvar, a case brought in a Pennsylvania federal District Court by which the Trump campaign sought to disenfranchise millions of voters based on narrow claims of purported defects in voting procedures.[17]  Mr. Giuliani was not the original attorney in the case, and was substituted in the morning of the oral argument of an important motion after several other counsel withdrew.  At oral argument, he claimed that 2.6 million ballots should be invalidated due to widespread voter fraud.  However, when questioned by the judge, Mr. Giuliani admitted that fraud was not even alleged in the complaint.  The District Court granted the Defendants’ motions to dismiss with prejudice.  On appeal, the Third Circuit issued an opinion noting that the Trump campaign cited neither specific evidence nor authority to bar the Commonwealth from certifying its election results.[18]

Outside the courtroom, Mr. Giuliani’s alleged role in the Trump campaign’s promotion of false election claims expanded to a nationwide tour of appearances in state legislatures and press interviews in December 2020.  Among the examples of this conduct was Mr. Giuliani’s appearance before the Georgia State Senate during which he presented a 90 second video clip showing what Mr. Giuliani claimed to be evidence of fraud at a vote tabulation center.  Within days of his appearance, Georgia election officials and all major media outlets demonstrated that Mr. Giuliani’s supposed evidence was false.  Mr. Giuliani used the same tactic in Missouri, stating that there had been “indisputable evidence of fraud captured on videotape.”[19]

Then, according to the LDAD Complaint, in an interview that he gave in the days leading up to the certification of the Presidential election results, Mr. Giuliani stated that Vice President Pence could determine on January 6th that the election was conducted illegally in six states and refuse to certify the electoral votes.  Finally, in a rally to reverse the election, Mr. Giuliani again made references to a stolen election and told the assembled group of Trump supporters that he would stake his reputation that criminality in the election would be established, and urged them to engage in “trial by combat.”[20]

The LDAD Complaint calls for Mr. Giuliani to be suspended on an interim basis while more permanent sanctions are under consideration, arguing that his actions threatened the public interest.  It alleges that Mr. Giuliani’s conduct violated New York Rules of Professional Conduct including: (1) Rule 3.1 “Non-Meritorious Claims and Contentions” (by his actions in the Boockvar matter knowing his claims were unsupported in law or fact), (2) Rule 4.1 “Truthfulness in Statements to Others” (by his repeated out-of-court assertions of widespread voter fraud without proof), (3) Rule 4.4(a) “Respect for Rights of Third Persons” (by his intent to harm the third party voters in the Boockvar litigation), (4) Rule 8.4 (c) “Misconduct Involving Dishonesty” (by knowingly making false public statements of widespread election fraud to deceive the public), and (5) Rule 8.4(h) (by engaging in conduct that adversely reflected on his fitness to practice law by seeking to invalidate millions of votes without any factual justification).

2. The Michael Miller Complaint

The Miller Complaint acknowledges Mr. Giuliani’s long and distinguished career as a U.S. Attorney for the Southern District of New York and later as Mayor of New York City to highlight what makes Mr. Giuliani’s conduct so objectionable.  The Miller Complaint alleges that Mr. Giuliani made statements inside and outside the courtroom to paint the election as a wide-ranging fraud conspiracy. The Complaint also alleges that, despite the lack of evidence to support his irresponsible claims and unfavorable rulings issued by a growing number of courts, Mr. Giuliani continued to make unsubstantiated statements casting doubt on the integrity of the Presidential election.

Like the LDAD Complaint, the Miller Complaint cites to the Boockvar case as an example of Mr. Giuliani’s misconduct, as well as pointing to his public assertions of widespread election fraud including at the January 6 rally.[21]  The latter include Mr. Giuliani’s assertions that Dominion Voting Systems was part of a plot to hand the election to Joe Biden, and that its machines intentionally miscounted large numbers of votes.[22]  Mr. Giuliani spread these false theories using social media and by other means including television appearances.

Based on these allegations, the Miller Complaint argues that Mr. Giuliani violated a number of ethics rules including: (1) Rule 3.1 prohibiting frivolous litigation (by appearing at the Boockvar oral argument claiming widespread voter fraud had occurred when he knew all the claims had been dropped in the pleadings), (2) Rule 3.3(a)(1) for making false statements of fact and law to a tribunal (by putting forth witnesses before the Michigan and Georgia legislatures to advance unsubstantiated claims of fraud), (3) Rule 4.1 for knowingly making false statements of fact and law to a third person in the course of representing a client (by making numerous false and unsubstantiated statements undermining the Presidential election), (4) Rule 8.4(b) for engaging in illegal conduct, (5) 8.4(c) for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation (his statements asking supporters of the Trump campaign to fight the certification of the electoral vote), (6) Rule 8.4(d) for engaging in conduct prejudicial to the administration of justice (his role in the incitement of those who stormed the Capitol), and (7) Rule 8.4(h) for engaging in conduct that adversely reflects on the lawyer’s fitness as a lawyer (by repeatedly making conspiracy allegations of election fraud publicly and before multiple tribunals).

III. NEW YORK’S DISCIPLINARY PROCESS

In New York, it is the court system, not local bar associations or other bodies, that is responsible for disciplining attorneys who violate New York’s Rules of Professional Conduct.  The process involves multiple stages of review:  screening, investigation, disciplinary proceeding/hearing and appellate court review.  As such, the attorney against whom charges are brought has several opportunities to raise defenses in confidential proceedings before discipline may be imposed, and the matter only becomes public, if at all, at the conclusion of that process.

Specifically, the conduct of New York attorneys is governed by the Appellate Divisions of the State Supreme Court and the Attorney Grievance Committees (“AGC”) appointed by the respective Appellate Division.[23]  The procedures for an attorney disciplinary matter in New York are governed by Part 1240 of New York’s Codes, Rules and Regulations.[24]  Complaints against attorneys are investigated and resolved by the AGC, which includes the staff that works for the AGC and a volunteer group of lawyers and non-lawyers appointed by the Appellate Division.[25]  To serve as a Committee member, an attorney must be in good standing with the Bar of the State of New York and have a principal place of business in the department.  Each Committee must have at least three non-lawyer members.[26]  The proceedings are strictly confidential and are not open to the public.[27]

Initial Screening.  Once a complaint is filed with the AGC, the Chief Attorney’s staff conducts an initial screening review.[28]  During the initial review, the staff determine whether: (1) there is jurisdiction and (2) the allegations constitute misconduct.[29]  The screening attorney may also determine that the complaint lacks merit.[30]   All dismissal recommendations by the screening attorney are reviewed by the Chief Attorney.[31]

The AGC is not limited to the allegations in the complaint and has the ability to expand the scope and authorize its own investigation.[32]  If a matter is not dismissed at the screening review stage, the complaint is sent to the respondent attorney for an answer to the allegations.[33]  Thereafter, the screening attorney prepares a summary of the allegations and the respondent attorney’s defenses.  The screening attorney conducts a “second screening” and may determine that the matter should be dismissed or warrants further investigation.[34]

Further Investigation and Committee Action.  In situations that warrant further investigation, the matter is assigned to a staff attorney who may subpoena documents, interview witnesses, and question the respondent attorney on the record under oath.[35]  Once the investigation is complete, the staff attorney makes a recommendation to the Committee members.  The members may themselves recommend dismissal, a Letter of Advisement (when conduct only warrants a comment), a Letter of Admonition (private discipline not serious enough to warrant a disciplinary proceeding), or formal disciplinary proceedings.[36]  The Committee may authorize a formal disciplinary proceeding if the Committee finds (1) that there is probable cause to believe that the attorney who is the subject of the complaint engaged in professional misconduct warranting the imposition of public discipline and (2) that such discipline is appropriate to protect the public, maintain integrity and honor of the profession or deter others from similar conduct.[37]

Formal Disciplinary Proceeding.  Once a formal disciplinary proceeding is instituted, the respondent attorney is served with a notice of petition and has 20 days to answer.[38]  Thereafter, the parties may either reach a resolution of discipline by consent, or conduct a hearing before a referee.[39]  The referee acts as the fact-finder at the hearing.  The burden of proof is on the AGC to establish each element of the charge by “a fair preponderance of the evidence.”[40]  The hearing is conducted in two separate parts including liability (violations of the Rules of Professional Conduct) and sanction (mitigation and aggravation evidence).[41]   If a hearing is held, the parties brief the matter, and the referee makes findings of fact and conclusions of law and recommendations to the Appellate Division.

Appellate Review.  The matter is then presented to the appropriate Appellate Division of the New York court system for its decision as to whether to affirm or disaffirm the referee’s findings and recommendations, and for the Appellate Division to determine the appropriate sanction.[42]  The available public sanctions include censure, suspension, and disbarment.[43]  Pursuant to Judiciary Law Section 90(10), the matter does not become public until the Court publicly disciplines an attorney.  Conversely, if the Court determines that a private sanction is appropriate or the matter should be dismissed, it will not become public.[44]

As the above summary indicates, during the disciplinary proceeding, a respondent attorney has several opportunities to present defense(s) to the allegations made against him.  The respondent attorney may (i) respond to the initial complaint, (ii) submit an Answer to the Petition, (iii) cross-examine the witnesses and present evidence at the hearing, and (iv) submit briefs to the referee and thereafter to the Appellate Division.[45]  Thus, to the extent Mr. Giuliani chooses, he will have an opportunity to raise any defenses he may have to the allegations against him, including any First Amendment challenges, and/or to dispute the facts that serve as the basis for the allegations.  On the issue of sanction, if applicable, he also may cite mitigating facts, potentially including, for example, his prior public service.

IV. THE CONSEQUENCES OF MR. GIULIANI’S ACTIONS

As discussed above, one of the factors examined by the Grievance Committee is whether attorney discipline is appropriate to protect the public, maintain the integrity and honor of the profession or deter others from similar conduct.  In other words, the public consequences of Mr. Giuliani’s actions matter.

The enforcement of the rules regulating attorney conduct is not a matter of partisan politics; it is about preserving public confidence in the integrity of the judicial system and reinforcing the importance of the rule of law.  To that end, United States Presidents Richard Nixon and Bill Clinton and other prominent holders of public office who are also attorneys have been subject to professional discipline where their activities in public office have adversely reflected on their fitness as attorneys.[46]

As publicly reported and as recognized in the LDAD and Miller Complaints, not only did Mr. Giuliani play a very public and leading role in the Trump campaign’s efforts to overturn the Presidential election, but he continued to aggressively pursue those challenges even after other Trump attorneys reportedly refused to do so because it had become clear that there was no evidence to support them.[47]  Moreover, in doing so, Mr. Giuliani used his position as an attorney – one who had previously served in senior government positions including as United States Attorney for the Southern District of New York and Associate Attorney General of the United States– to lend credence to his baseless assertions that the election results were the product of widescale election fraud.[48]

As New York’s highest court has explained, “Lawyers play a critical role in sustaining the rule of law and thus it is necessary that the legal profession maintain its unique ability to do so by earning the respect and confidence of society.”[49]  The allegations against Mr. Giuliani demonstrate quite the opposite, that is, through his words and deeds he has served to undermine the rule of law as well as public confidence in the legal system and the legal profession.

We now know that when Mr. Giuliani called for “trial by combat,” the angry crowd of Trump supporters that he was stirring up took his words – and those of President Trump and others – to heart and stormed the Capitol.  And this was only the culmination of a pattern of conduct, inside and outside the courtroom, that Mr. Giuliani is alleged to have engaged in with flagrant disregard for his obligations as an attorney.  Indeed, that misconduct continued even after the complaints were filed, including Mr. Giuliani’s widely reported call that was intended for Alabama Senator Tommy Tuberville, in which Mr. Giuliani asked Senator Tuberville to participate in efforts to prevent certification of the electoral college vote.[50]

V. CONCLUSION

Based on the foregoing, we support a full investigation into these allegations as one step towards restoring the public’s confidence that members of the bar are held accountable for their actions.  Mr. Giuliani should be afforded the due process of appearing before the disciplinary body to answer for these serious allegations of misconduct, and if it is established that he violated the ethical rules that govern the practice of law in this State, he should be appropriately sanctioned.

Council on the Profession
Dean Matthew Diller, Co-Chair
Melissa Colon-Bosolet, Co-Chair

Task Force on the Rule of Law
Stephen L. Kass, Chair

Professional Ethics Committee
Tyler Maulsby, Chair

Professional Responsibility Committee
Aegis J. Frumento, Chair

Legal Referral Service Committee
David G. Keyko, Chair

February 2021