The D.C. Bar’s Legal Ethics Proceedings Against Rudi Giuliani: I’m Confused

I confess: I find the reports of the recent hearing before the D.C. Bar’s Board on Professional Responsibility bizarre, the intensity of the prosecutor ,Hamilton “Phil” Fox III of the  Bar’s Office of Disciplinary Counsel surprising, and demand that Giuliani be disbarred surprising. I am limited as to what I can discern from these reports, and to some extent it’s my own fault: until now, I was not aware that such hearings were streamed online, so I could have watched this inquiry live two weeks ago. I can’t now, because one can only watch the broadcasts live; they are erased after they are completed. Good to know, but it’s too late for me to make a first hand analysis.

Among other things that confuse me is why the Washington Post assigned a non-lawyer (and definitely a non legal ethics specialist) to cover the hearing and write the story. That explains the infuriating vagueness of the reporting, as in the repeated explanation that Giuliani is being accused of “misusing his law license.” I know the D.C. Rules of Professional Conduct pretty well, as I’ve taught it for over 25 years: “Misusing a law license” doesn’t appear there. Nowhere, including in the Post, can I find the specific rule or rules that the former New York City mayor and prosecutor allegedly violated. There has to be a rule. In New York, Giuliani’s license was suspended on a court’s determination that he  made “demonstrably false and misleading” statements that widespread voter fraud undermined the 2022 election.

Giuliani has been licensed in the District of Columbia since 1976 (as have I).  His license is currently inactive.

Following the unusually contentious hearing (or so I’m told), the preliminary finding by the subcommittee of the D.C. Bar’s Board on Professional Responsibility was that Giuliani, in the course of representing former President Trump in the furious last minute legal efforts to challenge the legitimacy of the 2022 election, violated at least one D.C, ethics rule in a manner serious enough to warrant professional sanctions, which can range from an official reprimand to suspension to disbarment. Now  Giuliani and his legal team will  file additional briefs detailing his defense against that charge as officials consider the harshness of the discipline levied against him, if any. Robert C. Bernius, the panel’s chairman, said  that the finding was “preliminary and nonbinding.”

We may not know the outcome for two years or more. A decision by the panel is not expected until the spring at the earliest. The panel’s final ruling  will be passed on to the the D.C. Bar, which will make a recommendation to the D.C. Court of Appeals. The Court issues the final decision, which itself is subject to appeal; I expect any adverse result to be appealed to the limit.

I work for the D.C. Bar frequently; I have not reviewed the briefs or evidence, and as I said, I missed the three-day hearing. I know of Phil Fox’s work and credentials, which are exemplary and put mine to shame; I’m not in a position to criticize him. However I do have questions about this whole matter. Such as:

  • Why is Fox so adamant that Giuliani be disbarred? He told the board that Giuliani’s conduct “calls for only one sanction, and that’s the sanction of disbarment….What Mr. Giuliani did was use his law license to undermine the legitimacy of a presidential election, to undermine the basic premise of the democratic system that we all live in, that has been in place since the 1800s in this country.” All I can go on is what was reported in the woefully inadequate Post story, but with all due respect, that sounds like a political argument rather than a professional one. Trump Derangement runs amuck in the D.C. legal community, infecting many of its best and brightest.
  • Disbarment is a very unusual sanction against a lawyer who has not previously been found guilty of major ethical violations, and rarer still against a lawyer with Giuliani’s illustrious record. To justify disbarment, a lawyer like Giuliani would normally have to engage in conduct that was criminal or that reached the very highest levels of ethics breaches. Jury tampering. Deliberately presenting false evidence at trial. Suborning perjury. What is the specific rule that Giuliani violated justifying the ultimate penalty? I’ve heard two mentioned: D.C. Rule 3.1, Meritorious Claims & Contentions, which prohibits filing “frivolous actions” and Rule 8.4 d, which states that a lawyer must not “engage in conduct that seriously interferes with the administration of justice.” Disbarments for the first is vanishingly rare. As Giuliani’s defense pointed out in the hearings, even the judge who filed repeated absurd lawsuits against a D.C. dry cleaner for supposedly losing a pair of pants only received a moderate suspension, and as Giuliani testified, law suits do not have to be fully backed by evidence when they are filed. Regarding the accusation that he falsely alleged fraud, Giuliani said, “You have to plead fraud with specificity with what you have, with what is available,”  “But in discovery you get the additional information. This was specific enough for this stage of the pleading. That’s why it’s evidence and not a conclusion.”

The second rule is virtually never the basis for disbarment on its own, in part because the rule is arguably too vague to be constitutional. Many states omit it for this reason.

  • Why is the prosecution of Giuliani for what Fox called “a conspiracy” to undermine democracy still going full steam in light of growing evidence that a conspiracy against democracy by other entities and individuals was part of what prompted Giuliani’s (and Trump’s) actions ? Is it wise, reasonable and conducive to the public’s trust of the D.C. Bar for its rhetoric to resemble the loose “insurrection” talk in the House’s partisan January 7 Commission?

_________________________

Sources: Washington Post 1, 2.

43 thoughts on “The D.C. Bar’s Legal Ethics Proceedings Against Rudi Giuliani: I’m Confused

  1. I hope to live long enough to someday read the book someone will write which will diagnose the mass hysteria among, generally speaking, intelligent, accomplished, successful, mature adults resulting from Donald Trump’s being elected president of the United States. Absolutely bizarre and unprecedented. I’ve probably lost five friends as a result of not being sufficiently outraged and shocked, shocked I tell you, by Trump’s even daring to trod the Earth. The book should be titled, “What Happened.”

    • I’m with you, Bill.
      It’ll be great to be a future historian, once American Lysenkoism crashes and burns.
      Think of all the juicy topics for investigation:
      Trump Derangement;
      Covidmania;
      The Canonization of George Floyd;
      The Brain Damage caused by Twitter;
      and my personal fave:
      How did every cultural and educational institution in the entire Anglosphere convert to the same exact political ideology within the span of a year?
      Present-day idiocy and hysteria will be a fertile ground for shock and laughter sometime in a few decades.

      • … How did every cultural and educational institution in the entire Anglosphere [emphasis added] convert to the same exact political ideology within the span of a year? …

        Although that appears to be true of many major outlets, even here in Australia, like TV’s channel 10, it does not appear to hold of lesser contrarian outlets like Quadrant magazine. If anything, the likes of the latter are reserving judgment.

        • I’ve noticed some Aussie TV coverage of US politics and society that is wonderfully contrarian and spot on. Even better than Fox here in the US.

      • Rupe, I think the migration of the American Academy and now the media and even corporate and professional culture to Marxism is explainable as the result of a conscious effort that’s been underway since the end of World War II, and which continues apace. What Trump’s election has wrought is everywhere and granular by comparison and had significant impacts upon the most mundane personal relationships throughout society. Strange, non?

        Cheers.

    • “He lied in court”.
      As an attorney was he proffering an argument or deliberately presenting falsified evidence?

      To claim he lied you must prove he knew that the statements were false.

      People who hate Trump or Biden get caught up in what is perjury and what is opinion. One of the reasons that none of the 50 plus intelligence officials who signed a letter creating the appearance that the Hunter Biden laptop was Russian disinformation will not be prosecuted or disciplined in any way was they did not state it as a fact, they implied it and voters inferred what the signers wanted voters to infer. Saying something has the hallmarks of something is an opinion not a fact. Opinions are not lies they are interpretations of a given set of data. What we know now is that it appears that current and former government officials were abrogating the oath they took to preserve and defend the Constitution for partisan reasons.

      Unless Gulliani was convicted of perjury or some other crime claiming he lied in court is a lay opinion that is not based on factual evidence.

      It troubles me that no “journalist” ever asked these 50 intelligence officials if the Hunter Biden laptop was in fact disinformation or outside interference. Had they done so the American people would not have been led down a false path.

    • Nope. Lawyers present their client’s theories and positions, not their own. Johnny Cochran wasn’t lying when he said O.J. was innocent (and he knew he wasn’t). Presenting false evidence literally means faking data and documents. A allegation that turns out to be unprovable isn’t a “lie” in legal ethics unless the lawyer knew it couldn’t be proven.

      • Yes, he filed lawsuits to throw tons of Pennsylvania votes without any direct evidence of election fraud, while claiming there was.

        That’s why he’s in trouble.

        • I haven’t seen the precise evidence presented in the lawsuit. However, it would be very, unusual to claim a disbarrable offense for allegations in a suit before discovery and when the suit never went forward. Giuliani’s description of the process (which I quoted) is substantially accurate.

          My guess is that he’s in trouble because he filed a weak suit of dubious validity while representing President Trump.

          • “weak suit of dubious validity”

            I guess thats one way to say “demonstrably false and misleading”

            Also, Giuliani’s claims were demonstrably false because he had no such evidence or claims of evidence to prove otherwise.

            For instance, he repeatedly misrepresented how many absentee ballots were sent out in PA vs how many were counted in the election to make it seem like there was fraud.

            He then later admitted his statements were wrong.

            Also, he was given the opportunity to show where he got this info from but was unable to…since it was made up.

            • The situation was unique and unprecedented, and, from the plaintiff’s perspective, very important, with national interest involved There was a real time limit after which no evidence however damning would make any difference. Getting accurate information was difficult to impossible. Lawyers admitting they were “wrong” in court submissions doesn’t constitute admissions of dishonesty.

              So far, the proceedings against the various Trump lawyers seem similar to the trials of the Jan. 6 rioters—completely inconsistent with precedent, and suspiciously redolent of partisan persecution. I think Rudy’s handling of the case was at worst sloppy and incompetent. He needs to retire. But from what I’ve seen so far, his critics are exaggerating his misconduct

              • Getting accurate information was difficult to impossible.

                I mean…no that’s not true at all. And even if it was, you don’t present things in court as fact, that are easily falsifiable by data, and then not present any evidence to back up your opposing claim. Which is exactly what he did and that’s why he’s in trouble.

                • You can’t possibly be a litigator. Lawyer present arguments and assertions that they must have evidence to back up by the time they must make their case in court. “Getting accurate information was difficult to impossible” is 1005 correct—look at how long it took to decide that in fact, Pennsylvania laws were bypassed and ignored illegally in the election. Determining voting fraud and irregularities is extremely difficult: that’s one of the reasons Trump’s lawyers assertions were premature—it’s also why voting irregularities, especially with mail-in ballots, drop-boxes and early voting are impossible to disprove

      • “ Johnny Cochran wasn’t lying when he said O.J. was innocent (and he knew he wasn’t)”

        What a strange comparison, especially from someone with a legal background. As you know, every accused criminal is entitled to representation, and portraying one’s client as innocent in a criminal trial against them is practically the legal duty of a lawyer. There is no such duty to proactively file a frivolous civil lawsuit based on fabrications.

        • The duty of a lawyer to represent a client’s position is the same in a civil or criminal context. My point is that asserting a client’s position when the lawyer does not know it is correct or even believes otherwise is not a “lie.” (Actually, an ethical defense lawyer should be careful about rhetoric asserting actual innocence when he or she knows otherwise—but they typically aren’t). A lawyer may not ethically file a frivolous lawsuit, but the bar for non-frivolous is much lower than you seem to think. A good faith belief by the lawyer that the suit could prevail is enough to clear that bar even if it would require a change of law or precedent

          • “The duty of a lawyer to represent a client’s position is the same in a civil or criminal context”

            Which is why lawyers should not file civil suits based on ridiculous positions.

            I suppose Rudy could have had a “good faith” belief that the ridiculous claims in the bogus voter fraud cases he filed were true. If so, he’s delusional, not a liar. How do you recommend we stop him from continuing to inflict his delusions upon the legal system and clogging it up with bogus lawsuits?

          • Also, I specifically said that there is no duty to FILE frivolous lawsuits, not that there was no duty to represent his client’s position once he had filed it.

          • “He was not able to present sufficient evidence for the court’s satisfaction.”

            Um no. He had ZERO evidence for his claim. None.

            This is pure spin is it not?

            • False. Giuliani presented inadequate evidence in the eyes of the judges for what was being asked: he had affidavits, signed, under oath. Insufficient evidence, weak evidence, is not “no evidence.” Giuliani’s reliance on affidavits without more was greatly commented upon at the time, and justifiably criticized. But affidavits are evidence.

              • False. Giuliani presented inadequate evidence in the eyes of the judges for what was being asked: he had affidavits, signed, under oath.

                What? No he didn’t.

                Where?

                He got in trouble specifically for his claim that X PA ballots went out, and more than X number of ballots were returned.

                When asked for his evidence as to where he got this info, he said he was told by a staffer but couldn’t name who or supply any document ion or website or literally anything to show where he got those very specific numbers.

                THIS is why he’s in trouble.

                Do you deny this? I’m so confused.

                • Do I deny that he lacked affidavits? All of the Trump lawyers had affidavits, which were deemed inadequate for what was being demanded, and that’s why the lawsuits were thrown out of court. Those are evidence. Affidavits are evidence. What’s confusing? I have seen many, many lawsuits filed with affidavits as evidence. In this case, they were woefully inadequate.

                  • He had zero….I repeat, ZERO affidavits for the PA ballot claim he got in trouble for and which you keep ignoring.

                    Here are the facts:

                    Respondent does not deny that his factual statement, that only 1.8 million mail-in ballots were requested, was untrue. His defense is that he did not make this misstatement knowingly. Respondent claims that he relied on some unidentified member of his “team” who “inadvertently” took the information from the Pennsylvania website, which had the information mistakenly listed. There is simply no proof to support this explanation.

                    For instance, there is no affidavit from this supposed team member who is not identified by name or otherwise, nor is there any copy of the web page that purportedly listed the allegedly incorrect data. In fact, the only proof in this record is the official data on the Pennsylvania open data portal correctly listing the ballots requested as 3.08 million.

                    Again, this is why he’s in trouble. I’ve said this like 10 times now and it’s odd you’re not acknowledging this.

                    • Oh! Now it’s no affidavits on a particular point! You’re shifting goal posts, and wasting my time. It was an incompetent lawsuit. Giuliani screwed up. I never disputed any of that. However, the way he screwed up, from everything I’ve seen, never, virtually never, results in serious professional sanctions for a first time offender. Giuliani appears to be “in trouble” because he was representing Donald Trumo

                  • Ok so your argument is that Guiliani trying to throw out ballots and sway a national election by using fabricated facts is just not that big of a deal and a “first time offender” shouldn’t be treated this way…

                    That’s an insane viewpoint especially from an “ethics expert”

                    This is such an awful take from you…it’s embarrassing honestly and instead of level-headed legal analysis from you, you’re just bloviating and letting your partisan leanings alter your analysis, as usual.

                    • Let me be clear: you don’t know what you’re talking about. Lawyers are not deemed unethical because of the objectives of their work or their client’s positions unless that objective is a crime. I am not here to provide “legal analysis” of Giuliani’s case on behalf of Trump, because that’s irrelevant to the blog and not my area. Ethically, as I stated. “weaponizing a law license” and your “throw out ballots and sway a national election ” mischaracterization”—the point was to delay election finality until sufficient investigation could be undertaken—are not proper legal ethics offenses. I have consulted with other authorities in this area who confirm my analysis. And in levying professional discipline, a lawyer’s record is of prime importance. I work in this area and have for 25 years. It is virtually unheard of for any lawyer with a clean record to be disbarred outside of a criminal conviction.

                      Again, you are ignorant, and presuming to chastise someone who understands what you do not.

                      So I will ignore your obnoxious insults and invite you to comment on something else when you have more than just an unqualified opinion to offer. On this topic, you’re through. Understood? Try another post—if you try to comment again on this one, you will be deleted and banned. (There is no first offender leniency here.)

                  • From the moderator: [I told this relentless one-note troll that he was prohibited from making the same argument repeatedly, and gave him a pass for being rude and obnoxious to the host, provided that he moved on to other topics. He returned to this anyway.

                    “Peter Nero” is banned. If he tries to come back, don’t reply.
                    As usual, I saw this coming, yet tried to give him the benefit of the doubt.]

                    He has a subsequent post, and that’s deleted, as I said it would be.

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