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?