Attorney Grievance Comm. for the First Judicial Dep't v. Giuliani (In re Giuliani)

197 A.D.3d 1

146 N.Y.S.3d 266

In the MATTER OF Rudolph W. GIULIANI (Admitted as Rudolph William Giuliani), an attorney and counselor-at law:

Attorney Grievance Committee for the First Judicial Department, Petitioner,

v.Rudolph W. Giuliani, (OCA Atty. Registration No. 1080498), Respondent.

Motion No. 2021-00491

Case No. 2021-00506

Supreme Court, Appellate Division, First Department, New York.

Entered June 24, 2021

Jorge Dopico, Chief Attorney, Attorney Grievance Committee, New York (Kevin M. Doyle, of counsel), for petitioner.

Barry Kamins, Esq. and John Leventhal, Esq., Aidala, Bertuna & Kamins, P.C., for respondent.

Rolando T. Acosta, P.J., Dianne T. Renwick, Sallie Manzanet-Daniels, Judith J. Gische, Barbara R. Kapnick, JJ.

IN THE MATTER OF RUDOLPH W. GIULIANI , AN ATTORNEY

Per Curiam

The Attorney Grievance Committee moves for an order, pursuant to Judiciary Law § 90(2) and the Rules for Attorney Disciplinary Matters ( 22 NYCRR) § 1240.9(a)(5), immediately suspending respondent from the practice of law based upon claimed violations of rules 3.3(a); 4.1; 8.4(c) and 8.4(h) of the Rules of Professional Conduct ( 22 NYCRR 1200.0 ) (Rules of Conduct or RPC). Respondent was admitted to practice as an attorney and counselor at law in the State of New York on June 25, 1969, under the name Rudolph William Giuliani. He maintains a law office within the First Judicial Department.

For the reasons that follow, we conclude that there is uncontroverted evidence that respondent 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. These false statements were made to improperly bolster respondent's narrative that due to widespread voter fraud, victory in the 2020 United States presidential election was stolen from his client. We conclude that respondent's conduct immediately threatens the public interest and warrants interim suspension from the practice of law, pending further proceedings before the Attorney Grievance Committee (sometimes AGC or Committee).

The Nature of this Proceeding

During the course of this ongoing investigation into numerous complaints of respondent's alleged professional misconduct, the AGC seeks respondent's immediate suspension from the practice law in the State of New York. Under certain circumstances, such serious interim relief is available, pending a full formal disciplinary proceeding. Interim suspension is available even where formal charges have not yet been filed ( 22 NYCRR 1240.9 [a]).

All attorneys who are licensed to practice law in New York are subject to the Rules of Conduct, which establish a framework for the ethical practice of the law and a lawyer's duties as an officer of the legal system (Preamble to the Rules of Professional Conduct, ¶¶ 1, 8). Violation of these rules may lead to professional discipline (22 NYCRR 1240). The ultimate purpose of any disciplinary proceeding, however, is not to impose punishment for breaches of the Rules of Conduct, but rather "to protect the public in its reliance upon the integrity and responsibility of the legal profession" ( Matter of Nearing, 16 A.D.2d 516, 518, 229 N.Y.S.2d 567 [1st Dept. 1962] ; see Matter of Gould , 4 A.D.2d 174, 164 N.Y.S.2d 48 [1st Dept. 1957] ).

Each Judicial Department of the Appellate Divisions of the New York Supreme Court is responsible for the enforcement of the Rules of Professional Conduct within its departmental jurisdiction ( Judiciary Law § 90[2] ). Attorney Grievance Committees, either upon receipt of a written complaint, or acting sua sponte, are charged with investigating misconduct through various means, including interviewing witnesses, directing the attorney under investigation to submit written responses or appear for a formal interview, and other actions necessary to investigate the complaint ( 22 NYCRR 1240.7 ). Once the investigation is complete, the Committee may commence a formal proceeding in which the attorney has the right to be heard. If the Committee concludes that the attorney may face public discipline, then, consistent with the objective of "protect[ing] the public, maintain[ing] the integrity and honor of the profession, or deter[ing] others from committing similar misconduct," the matter is brought before the Appellate Division ( 22 NYCRR 1240.7 [d][2][v]; see also 1240.8; Matter of Nearing, 16 A.D.2d at 518, 229 N.Y.S.2d 567 ). The Court is tasked with the responsibility of reviewing the record and deciding whether there has been any misconduct and if so, what the appropriate discipline would be ( 22 NYCRR 1240.8 ).

In certain cases, the Committee may, during the pendency of its investigation, make a motion to the Court for an attorney's interim suspension. Interim suspension is a serious remedy, available only in situations where it is immediately necessary to protect the public from the respondent's violation of the Rules ( 22 NYCRR 1240.9 ; see Matter of Liebowitz , 503 F.Supp.3d 116 [S.D. N.Y. 2020] ). At bar, the AGC is proceeding on the basis that there is uncontroverted evidence of professional misconduct ( 22 NYCRR 1240.9 [a][5]; Matter of Aris , 162 A.D.3d 75, 81, 76 N.Y.S.3d 171 [1st Dept. 2018] ; Matter of Pomerantz, 158 A.D.3d 26, 28, 68 N.Y.S.3d 460 [1st Dept. 2018] ).¹ Importantly, when an attorney is suspended on an interim basis, he or she nonetheless has an opportunity for a post-suspension hearing ( 22 NYCRR 1240.9 [c]).

Uncontroverted Claims of Misconduct

Only uncontroverted claims of professional misconduct may serve as a basis for interim suspension on this motion. In connection with its claim that uncontroverted attorney misconduct has occurred, the AGC relies upon the following provisions of the New York Rules of Professional Conduct:

rule 3.3 which provides that: "(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal...."

rule 4.1 which provides that: "In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person," and

rule 8.4 "A lawyer or law firm shall not: ... (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation, ... or (h) engage in any other conduct that adversely reflects on the lawyer's fitness as a lawyer."

Under the Rules of Professional Conduct, the prohibition against false statements is broad and includes misleading statements as well as affirmatively false statements ( Matter of Antoine , 74 A.D.3d 67, 72, 899 N.Y.S.2d 41 [1st Dept. 2010] ; Matter of Piepes , 259 A.D.2d 135, 137, 692 N.Y.S.2d 716 [2d Dept. 1999] ; see ABA Model Rule 4.1, commentary ["Misrepresentations can also occur by partially true, but misleading statements or omissions that are the equivalent of affirmative false statements"]). In addition, the Rules concern conduct both inside and outside of the courtroom (see Matter of Coyne , 136 A.D.3d 176, 22 N.Y.S.3d 434 [1st Dept. 2016] ; Matter of Liotti , 111 A.D.3d 98, 972 N.Y.S.2d 231 [1st Dept. 2013], lv denied 22 N.Y.3d 862, 2014 WL 642749 [2014] ; Matter of Rios , 109 A.D.3d 64, 965 N.Y.S.2d 418 [1st Dept. 2013] ; Matter of Krapacs , 189 A.D.3d 1962, 138 N.Y.S.3d 290 [3d Dept. 2020] ).

In general, the AGC relies upon statements that respondent made following the 2020 election at press conferences, state legislative hearings, radio broadcasts (as both a guest and host), podcasts, television appearances and one court appearance. Respondent concedes that the statements attributed to him in this motion were all made in the context of his representation of Donald J. Trump and/or the Trump campaign (Giuliani affidavit ¶¶ 8, 32).

Preliminary Issues

Respondent raises an overarching argument that the AGC's investigation into his conduct violates his First Amendment right of free speech.² He does not attack the constitutionality of the particular disciplinary rules; he seemingly claims that they are unconstitutional as applied to him. We reject respondent's argument. This disciplinary proceeding concerns the professional restrictions imposed on respondent as an attorney to not knowingly misrepresent facts and make false statements in connection with his representation of a client. It is long recognized that "speech by an attorney is subject to greater regulation than speech by others" ( Gentile v. State Bar of Nevada , 501 U.S. 1030, 1051, 111 S.Ct. 2720, 115 L.Ed.2d 888 [1991] ). Unlike lay persons, an attorney is "a professional trained in the art of persuasion" ( Ohralik v. Ohio State Bar Assn. , 436 U.S. 447, 465, 98 S.Ct. 1912, 56 L.Ed.2d 444 [1978] ). As officers of the court, attorneys are "an intimate and trusted and essential part of the machinery of justice" ( Gentile v. State Bar of Nevada , 501 U.S. at 1072, 111 S.Ct. 2720 [internal quotation marks omitted]). 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" ( Gentile v. State Bar of Nevada, 501 U.S. at 1056, 111 S.Ct. 2720 [internal quotations marks omitted]). This weighty responsibility is reflected in the "ultimate purpose of disciplinary proceedings [which] is to protect the public in its reliance upon the integrity and responsibility of the legal profession" ( Matter of Nearing , 16 A.D.2d at 518, 229 N.Y.S.2d 567 ). While there are limits on the extent to which a lawyer's right of free speech may be circumscribed, these limits are not implicated by the circumstances of the knowing misconduct that this Court relies upon in granting interim suspension in this case (see Kathleen M. Sullivan, The Intersection of Free Speech and the Legal Profession: Constraints on Lawyers’ First Amendment Rights , 67 Fordham L Rev 569 [1998] available at https://ir.lawnet.fordham.edu/flr/vol67/iss2/11/ [last accessed June 1, 2021]).³

Respondent also raises lack or absence of knowledge as a...