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Could Giuliani Get Disbarred? Ethics Complaints Explained (1)

Nov. 23, 2020, 7:52 PM; Updated: Nov. 23, 2020, 10:28 PM

Rep. Bill Pascrell, Jr. (D-N.J.), filed ethics complaints with disciplinary authorities in five states seeking to disbar Rudy Giuliani, President Donald Trump’s personal attorney, and 22 other Trump campaign lawyers over their allegations of widespread election fraud.

Writing to New York’s attorney grievance committee about Giuliani, Pascrell said that the former New York mayor and federal prosecutor “has participated in frivolous lawsuits and used our nation’s courts to assault public confidence in the United States electoral system, violating the New York Rules of Professional Conduct.”

Pascrell also asserts that Giuliani violated another ethics rule prohibiting dishonesty.

Giuliani is registered to practice in New York. Other letters by Pascrell to bar officials in Arizona, Pennsylvania, Nevada and Michigan name individual attorneys licensed in those states.

What are legal grounds for making these allegations?

Bar rules in the five states cover the same ground in separate rules on filing frivolous suits and acting dishonestly.

ABA Model Rule 3.1 prohibits lawyers from filing frivolous lawsuits. The comments section to the rule says that lawyers must make good faith arguments on behalf of their clients. An argument isn’t frivolous merely because the lawyer doesn’t think the client will prevail, it said.

Rule 8.4(b) or (c), depending on the state, lists fraud, dishonesty, deceit, and misrepresentation as professional misconduct.

How high is the bar for proving this?

A lawyer doesn’t necessarily need a winning case. But does need to have some foundation for filing the suit and a valid cause of action, said Jan L. Jacobowitz, director of the University of Miami School of Law’s Professional Responsibility & Ethics Program.

During discovery it “becomes clearer whether there is any evidence to support the case,” Jacobowitz said.

It is a high bar, though. The legal profession has a strong interest in protecting innovative claims generally barred by precedent — one example being Thurgood Marshall’s courthouse battles against segregation in the 1940s and 1950s before later joining the Supreme Court, said Lucian T. Pera, an attorney at Adams & Reese in Memphis.

How likely is it complaints will be acted on?

Disciplinary committees aren’t likely to investigate the frivolity charges unless there’s a court finding of frivolity, said Stephen Gillers, a legal ethics professor at New York University’s law school, in an email.

But committees are more likely to act on the dishonesty charge.

“A knowingly false statement to a court is serious misconduct,” he added. But even so, “a committee is more likely to act if the judge has already found as a fact that the lawyers made knowingly false statements,” Gillers said.

In general, when an injured party—and there haven’t yet been such claims made regarding Trump’s lawyers—has the ability to get relief elsewhere, like filing for sanctions under Rule 11, disciplinary counsel are often less interested in getting involved, Pera said.

(Adds other states and where Giuliani registered to practice law; adds model rule for fraud, paragraphs 4 and 5.)

To contact the reporter on this story: Melissa Heelan in Washington at mstanzione@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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