Will Rudy Giuliani be disbarred? Probably not for Trump's election lawsuits, experts say.
AP Photo/Jacquelyn Martin
- Rudy Giuliani has been criticized for frivolous, dishonest litigation and is on the receiving end of calls to take away his legal license.
- Giuliani is representing President Donald Trump's presidential campaign in numerous failed election lawsuits and has floated conspiracy theories about election fraud.
- Experts say that disbarment is unlikely, though Giuliani could face lesser sanctions from state bar associations and courts.
- Giuliani is at greater risk of being disbarred if he's convicted in a case stemming from a federal probe related to his work in Ukraine on behalf of Trump, which led to Trump's impeachment.
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As Rudy Giuliani continues to pursue long-shot lawsuits trying to overturn the will of voters and grant President Donald Trump a second term, some of his critics are trying to get him disbarred.
Rep. Bill Pascrell, a New Jersey Democrat, filed letters with the state bars of Arizona, Michigan, New York, Nevada, and Pennsylvania, seeking the disbarment of Giuliani and 22 other lawyers working for the Trump campaign.
He said the lawsuits — none of which have succeeded in court so far — violate rules forbidding frivolous litigation, as well as "conduct involving dishonesty, fraud, deceit, or misrepresentation."
"The egregious pattern of behavior by Mr. Giuliani to effectuate Mr. Trump's sinister arson is a danger not just to our legal system but is also unprecedented in our national life," Pascrell wrote.
Disbarment is a harsh and rare occurrence. The sanction no longer permits a lawyer to practice law in a particular state. Different states have different standards for disbarment, but they generally require breaking professional conduct rules.
"We as attorneys have an ethical obligation to bring or defend only where there is a basis of both law and fact," Nicole Noonan, a legal ethics commentator and litigation funder, told Insider. "Mr. Giuliani's multitude of suits may have crossed the ethical line and in this charged political climate could lead to the ultimate penalty for a lawyer: disbarment."
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Disbarment would be an enormous blow to Giuliani's reputation. In the 1980s, he held positions as the United States Associate Attorney General and the US Attorney for the Southern District of New York, two of the most important positions in the Justice Department. Later, Giuliani was mayor of New York City and a failed presidential candidate, and started his own lobbying, consulting, and legal practices.
In recent years, Giuliani has been a personal lawyer to President Donald Trump but rarely appears in court in person. His court appearance in Pennsylvania this month representing one of Trump's highest-profile election lawsuits — which resulted in a scathing ruling from a federal judge — was his first one in nearly 30 years. During that hearing, Giuliani recited several unfounded conspiracy theories about voter fraud to the judge that bore little relevance to the lawsuit he filed.
But his conduct won't result in disbarment, according to Stephen Gillers, a legal ethics professor at New York University law school. It's more likely that he'd be hit with a lesser reprimand, he said.
"Even if Giuliani is disciplined, the sanction would not be as extreme as disbarment," Gillers told Insider. "The courts are more likely to impose a private reprimand, which is never public, or a public censure."
There's a high bar to disbar
Most often, disbarment is the result of a clear ethical violation, like a lawyer cheating from a client, comingling finances, or receiving a felony conviction. There is also a range of lesser sanctions and forms of rebuke, like private or public reprimands, or suspensions.
While legal experts and virtually every judge have found Trump's election lawsuits to be without merit, judges still tend to allow a lot of leeway for creative legal arguments. Those sorts of arguments are important in getting precedents overturned even when the law hasn't changed, as with Thurgood Marshall's court battles over segregation in the 1940s and 1950s, as Bloomberg Law noted.
"If there hasn't been a referral from the judge to the bar, it sort of gets to be very tricky territory," Jan Jacobowitz, the director of the Professional Responsibility and Ethics Program at the University of Miami law school, told Insider. "Because ultimately whether somebody has a reasonable basis to file the initial complaint can be quite subjective."
AP Photo/Julio Cortez
The road to disbarment is a long one. The process differs by state, but it typically works something like this: There's the initial complaint, a private investigation over the merits of the complaint, and then a review by a grievance committee to determine whether the investigation's findings have merit. At that point, a bar counsel can "prosecute" the case based on the recommendation of the grievance committee. The bar counsel presents their case at a hearing typically overseen by a judge where the lawyer at the receiving end of the complaint gets to defend themself. The decision from that judge may also need to be approved by a top state judge.
But state agencies are unlikely to get involved in Giuliani's situation if they don't have to, Jacobowitz told Insider, short of court sanctions and a court referral.
One reason for that is state bar agencies just don't have the resources to wade into cases unless they absolutely have to, Gillers said.
"The public has a misguided notion about lawyer discipline," Gillers said. "The court agencies that investigate lawyers mainly concern themselves with theft of client money and crimes by lawyers. The agencies are understaffed and underfunded and barely able to do this job."
AP Photo/Jacquelyn Martin
Giuliani's social media posts and infamous press conferences could be a risk, Jacobowitz said. And if a court finds that he lied in front of a judge, that could also get him in trouble, according to Gillers.
"If a court were to make a finding that [Giuliani] and the other lawyers made frivolous claims or, worse, lied to the courts, disciplinary agencies may piggyback on those court findings, which doesn't require them to do much additional work," Gillers said.
Still, Giuliani would be more likely to face some kind of reprimand rather than disbarment over those issues.
"They do have the power to do something less than disbarment, but still make a statement," Jacobowitz said.
Giuliani didn't immediately respond to Insider's request for comment.
The reported federal investigation into Giuliani's work could be a bigger problem
Giuliani faces bigger problems than ethical investigations for his work in Trump's election lawsuits. He's reportedly under investigation by the US Attorneys Office for the Southern District of New York, the very department he led in the 1980s.
Federal investigators have reportedly sifted through his financial records and business dealings in Ukraine, following his work there trying to dig up dirt on now-President-elect Joe Biden — a plot for which President Donald Trump was ultimately impeached.
Two of Giuliani's Ukrainian associates, Lev Parnas and Igor Fruman, were indicted for crimes related to their political work in Ukraine. Parnas has pleaded guilty.
If Giuliani is indicted for a crime stemming from the investigation, his legal license could be in jeopardy.
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In New York, courts could suspend him from practicing law until the criminal case is over if they find that he poses a threat to his clients, according to Gillers. And if he's found guilty of a federal felony, he'd be automatically disbarred if the same conduct would be a felony under state law, Gillers said.
If Giuliani ends up being convicted for a misdemeanor, there's still a path to disbarment, according to Gillers.
"If the conduct would be only a misdemeanor under state law, there is not automatic disbarment but there will be a disciplinary investigation, which can lead to a sanction including disbarment depending on what the investigation turns up," he said.
In general, state bars can impose disbarment for lawyers who are convicted of crimes that cast their trustworthiness into doubt, according to Jacobowitz.
"You can end up being disbarred from being convicted of a crime that doesn't necessarily have to do with the practice of law," Jacobowitz said. "But that has to do with your fidelity or your fitness to practice law."
- Read more:
- A New Jersey congressman is seeking to disbar Trump's personal attorney Rudy Giuliani after he touted election-related conspiracy theories
- Trump cancels trip to Gettysburg hotel for a GOP hearing about baseless voter-fraud claims after a campaign adviser tests positive for COVID-19
- Trump is reportedly worried that his legal team is made up of 'fools that are making him look bad'
- A federal judge threw out a major Trump campaign lawsuit in Pennsylvania, issuing a blistering opinion refusing to disenfranchise 7 million voters
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