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New York City Bar’s Trump Warning Highlights False Claims Issue

Aug. 29, 2022, 10:15 AM

The New York City Bar’s warning against lawyers making misleading statements related to the search of former President Donald Trump’s Mar-a-Lago residence is the most recent example of professional associations and disciplinary bodies cracking down on false claims by attorneys, legal ethics experts told Bloomberg Law.

The City Bar, a voluntary organization, issued a report Aug. 24 in which it called on attorneys to refrain from making false statements about the search of the former president’s Florida residence earlier this month and the ensuing legal actions and proceedings.

“Words matter and have consequences, particularly when spoken by lawyers and public leaders about contentious legal processes,” the bar said at the outset of its 16-page report.

The association called upon “all members of the bar and political leaders” to refrain from making knowingly false or misleading statements about the Mar-a-Lago search warrant controversy, “to recognize the gravity and significance of the issues raised by this case,” and allow legitimate legal issues to be heard and resolved in court.

One of the attorneys named in the report is Trump lawyer Alina Habba, who, a day after the bureau executed its search warrant, purportedly said during a Fox News interview that the FBI “may have planted something” while searching Trump’s Florida residence.

Managing partner of the Bedminster, N.J.-based Habba Madaio and Associates LLP, Habba is licensed to practice law in New York, according to her firm bio, but is not a member of the 25,000-lawyer association. She didn’t immediately respond to Bloomberg Law’s emailed request for comment Aug. 26.

The volume of legal commentary about Trump’s potential legal perils increased further still on Aug. 26 with the release of the a heavily redacted version of the FBI affidavit submitted when seeking the search warrant.

Reining in False Claims

The NYCBA report was issued about a week after the New York County Lawyers Association also issued a statement responding to threats on the magistrate judge who authorized the Mar-a-Lago search.

There is a growing pressure to rein in false claims by lawyers, especially when those statements have the potential to lead to violence and threats of violence, according to Ronald Minkoff of Frankfurt Kurnit Klein & Selz PC. Minkoff submitted a complaint to the New York Attorney Grievance Committee against Rudy Giuliani concerning the ex-NYC mayor’s 2020 election fraud claims.

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Minkoff said the state court system’s subsequent decision to suspend Giuliani from the practice of law and similar decisions holding other lawyers accountable for election fraud claims made in court, “is an indication” of the trend.

“Our ethics rules have long condemned fraud, deceit and misrepresentation, and disciplinary prosecutors have been more than willing to enforce those rules in appropriate cases,” Minkoff told Bloomberg Law on Aug. 26. Lawyers can’t make false statements to courts or bring claims they know have no basis in fact, he said.

Differing Roles

“That misconduct gets much worse when it takes place on a national platform and the lawyers making the statements know their words might incite violence,” Minkoff said via email. “I hope the NYCBA Statement inspires us lawyers to follow the better angels of our nature. But those angels appear to be hiding lately.”

Arthur D. Burger of Washington’s Jackson & Campbell PC explained that the ethics rules distinguish between when a lawyer is representing a client in a matter and when they are not. When they are representing someone in a case, Rule 3.6 restricts their public statements that could prejudice the case, Burger told Bloomberg Law via email.

Restrictions that apply whether or not a lawyer is involved in a case, he noted, are grounded in Rule 8.2(a), which prohibits false statements about judges or a “public legal officer” that the lawyer knows is false or made with reckless disregard of the truth, and Rule 8.4(d), which prohibits actions that interfere with the administration of justice.

“The Supreme Court has recognized that these sorts of restrictions on speech by lawyers does not offend the First Amendment because lawyers waive such rights upon admission to the Bar,” he said.

To contact the reporter on this story: David McAfee in Los Angeles at dmcAfee@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com