Matter of Giuliani - 2021 NY Slip Op 04086, 197 A.D.3d 1, 146 N.Y.S.3d 266 (App. Div. 1st Dept.)

Rule:

When the underlying uncontroverted evidence of professional misconduct is very serious, the continued risk of immediate harm to the public during the pendency of the underlying disciplinary proceeding is unacceptable. For example, interim suspensions have been ordered where the offense is serious, although the risk of recurrence is slight, because the attorney intends to resign from the practice of law. Another consideration, related to the seriousness factor, is whether the underlying misconduct is likely to result in a substantial sanction at the conclusion of the formal disciplinary hearing proceeding.

Facts:

Rudolph Guiliani 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. Guiliani made false and misleading factual statements to cast doubt on the reliability of the results of the 2020 presidential election, in which Joseph R. Biden was constitutionally certified and then inaugurated as the 46th President of the United States. Guiliani repeatedly stated that in the Commonwealth of Pennsylvania more absentee ballots came in during the election than were sent out before the election. The factual "proof" he claimed supported his conclusion was that although Pennsylvania sent out only 1,823,148 absentee ballots before the election, 2,589,242 million absentee ballots were then counted in the election. This factual statement regarding the number of ballots mailed out before the election was simply untrue. The true facts are that 3.08 million absentee ballots were mailed out before the general election, which more than accounted for the over 2.5 million mail-in ballots that were actually tallied. Notwithstanding the true facts, Guiliani 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. He made these statements in press conferences, state legislative hearings, radio broadcasts (as both a guest and host), podcasts, television appearances and even one court appearance. On November 17, 2020 Guiliani appeared as the attorney for plaintiff on a matter captioned Donald J. Trump for President, Inc. v Boockvar (Boockvar), in the United States District Court for the Middle District of Pennsylvania. There, Guiliani repeatedly represented to the court that his client, the plaintiff, was pursuing a fraud claim, when indisputably it was not. Guiliani’s client had filed an amended complaint before the November 17, 2020 appearance in which the only remaining claim asserted was an equal protection claim, not based on fraud at all. 

The Attorney Grievance Committee moved for an order, pursuant to Judiciary Law §90(2) and the Rules for Attorney Disciplinary Matters (22 NYCRR) §1240.9(a)(5), immediately suspending Guiliani 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).

Issue:

Do Guiliani’s misstatements constitute immediate threat to the public interest, thereby warranting his suspension?

Answer:

Yes.

Conclusion:

Notwithstanding Guiliani’s claim that he has exercised self-restraint by not publicly commenting on the election, there are numerous instances demonstrating the opposite. Focusing only on the false statements that support our conclusion of uncontroverted misconduct (and not his statements about 2020 election matters generally), Guiliani has made or condoned numerous false statements just since the AGC brought this application for his interim suspension which pertain to dead or ineligible voters. Imminent threat to the public is established by this continuing pattern of Guiliani’s offending conduct and behavior. The court cannot rely on Guiliani’s representations that he will exercise restraint while these proceedings are pending. The risk that Guiliani will continue to engage in future misconduct while this disciplinary proceeding is pending is further borne out by his past, persistent and pervasive dissemination of these false statements in the media. This is not a situation where the uncontroverted misconduct consisted of only a few isolated incidents. Rather, each of the false statements identified and analyzed herein were made multiple times on multiple platforms, reaching countless members of the public. They continued after this motion was brought, and despite respondent facing imminent suspension from the practice of law.

The seriousness of respondent's uncontroverted misconduct cannot be overstated. America is being torn apart by continued attacks on the legitimacy of the 2020 election and of the current president, Joseph R. Biden. 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 the bar and damages the profession's role as a crucial source of reliable information. 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. Where, as here, the false statements are being made by Guiliani, acting with the authority of being an attorney, and using his large megaphone, the harm is magnified.