Matter of Giuliani
2021 NY Slip Op 04086
| N.Y. App. Div. | 2021Background
- Attorney Grievance Committee (AGC) moved for interim suspension of Rudolph W. Giuliani under Judiciary Law §90(2) and 22 NYCRR 1240.9(a)(5) based on alleged false and misleading statements he made while representing Donald J. Trump and the Trump campaign after the 2020 presidential election.
- Court found uncontroverted evidence that Giuliani repeatedly made demonstrably false or misleading factual statements to tribunals, lawmakers, and the public (e.g., Pennsylvania absentee-ballot counts, claims of dead voters including Joe Frazier, Georgia hand‑count/audit denial claims, underage and felon voting numbers, video mischaracterizations, and Arizona noncitizen voting figures).
- The Court held those statements violated Rules of Professional Conduct 3.3(a), 4.1, and 8.4(c) and (h); it construed RPC 8.4(c) to require a knowing mental state and applied Rule 1.0(k) ("knowingly" = actual knowledge, subject to inference from circumstances).
- Giuliani’s First Amendment argument was rejected: professional speech by lawyers is more regulable; disciplinary rules target lawyer conduct in representation, not protected public debate in the abstract.
- The Court found an immediate threat to the public interest based on continuing misconduct, seriousness of offenses, ongoing dissemination after the AGC motion, and likely substantial sanctions; it ordered immediate suspension from practice pending further disciplinary proceedings and permitted a post‑suspension hearing request within 20 days.
Issues
| Issue | Plaintiff's Argument (AGC) | Defendant's Argument (Giuliani) | Held |
|---|---|---|---|
| Whether uncontroverted false statements can support interim suspension | AGC: Yes—motion seeks suspension under 22 NYCRR 1240.9(a)(5) based on uncontroverted professional misconduct | Giuliani: Denies knowing falsity; claims reliance on sources and investigatory materials not produced | Held: Yes; AGC proved numerous uncontroverted, knowing false/misleading statements supporting suspension |
| Whether lawyer speech at issue is protected by First Amendment to preclude discipline | AGC: Rules regulate lawyer conduct and protect public reliance; discipline is permissible | Giuliani: Argues disciplinary inquiry impermissibly burdens his free speech | Held: Rejected Giuliani; attorney speech is subject to greater regulation in representation context |
| Whether RPC 8.4(c) requires a knowing mental state | AGC: Alleged knowing misconduct; seeks discipline under 8.4(c) | Giuliani: Claims statements were inadvertent/unaware; challenges knowledge element | Held: Court construed 8.4(c) to require knowing conduct (Rule 1.0(k)) and applied that standard here |
| Whether there is an immediate threat to the public interest justifying interim suspension | AGC: Continuing dissemination, seriousness, and likelihood of substantial sanction pose immediate public harm | Giuliani: Says he will refrain from further election commentary and no ongoing threat exists | Held: AGC showed immediate threat—continued post‑motion statements and nationwide consequences warranted interim suspension |
Key Cases Cited
- Matter of Nearing, 16 A.D.2d 516 (1st Dep't 1962) (disciplinary proceedings protect public reliance on integrity of legal profession)
- Matter of Gould, 4 A.D.2d 174 (1st Dep't 1957) (discipline’s protective purpose)
- Gentile v. State Bar of Nevada, 501 U.S. 1030 (U.S. 1991) (attorney speech is subject to greater regulation than lay speech)
- Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (U.S. 1978) (attorneys occupy a trusted professional role with attendant regulation)
- Matter of Antoine, 74 A.D.3d 67 (1st Dep't 2010) (prohibition covers misleading statements and omissions)
- Matter of Gilly, 206 F. Supp. 3d 940 (S.D.N.Y. 2016) (federal finding that false, knowing statements violated RPC 8.4(c))
- Matter of Gilly, 149 A.D.3d 230 (1st Dep't 2017) (reciprocal discipline following federal finding)
- Matter of Aris, 162 A.D.3d 75 (1st Dep't 2018) (interim suspension may be based on uncontroverted evidence)
- Matter of Pomerantz, 158 A.D.3d 26 (1st Dep't 2018) (same)
- Matter of Tannenbaum, 16 A.D.3d 66 (1st Dep't 2005) (serious misconduct can warrant interim suspension even without high recurrence risk)