27 JUNE 2021
Untitled, Watercolor, 9.5" x 9.5", Richard J Van Wagoner, Courtesy of Van Wagoner Family Trusts**
Once obtained, a license to practice law is a property right. One’s ability to retain a license to practice law is conditioned on several factors, including compliance with governing rules of professional conduct. The licensing authority can revoke, suspend, or otherwise limit one’s license based on sufficient proof of unprofessional conduct. Under the Fourteenth Amendment, however, a state licensing authority typically cannot impair — revoke, suspend, or condition — that property right absent due process of law. While it takes different forms depending on context, due process means that before the government is constitutionally permitted to infringe a property right, the holder of that right is entitled to notice of the allegations against him — here, a violation of the rules of conduct, defined as unprofessionalism — and a fair opportunity to be heard in response.
The immediate, albeit interim, suspension of Giuliani’s New York bar license, however, came before he had a full opportunity to respond to and defend the allegations against him. As a criminal defense attorney, I routinely see defendants’ liberty interests impaired before they receive full and fair due process by being held in pretrial custody, despite the presumption of innocence. Having also represented some lawyers before the Utah State Bar in disciplinary proceedings, I was curious whether the constitutional analysis of an immediate, pre-due process suspension of a bar license undergoes a similar analysis to pretrial detention in a criminal case, one that balances an individual’s interest in liberty against the public’s immediate need for protection from a criminal defendant who, in theory, is guaranteed the presumption of innocence until the government proves otherwise.
The short answer is, yes.
In IN THE MATTER OF RUDOLPH W. GIULIANI, AN ATTORNEY, Case №2021–00506, the Supreme Court of New York Appellate Division, First Judicial Department, commanded Giuliani
“to desist and refrain from the practice of law in any form, either as principal or agent, clerk or employee of another; that respondent is forbidden to appear as an attorney or counselor-at-law before any court, judge, justice, board or commission or other public authority; that respondent is forbidden to give another an opinion as to the law or its application or advice in relation thereto, all effective the date hereof, until such time as disciplinary matters pending before the Committee have been concluded and until further order of this Court . . . .”
The court concluded that
“there is uncontroverted evidence that respondent communicated demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer for former President Donald J. Trump and the Trump campaign in connection with Trump’s failed effort at reelection in 2020. These false statements were made to improperly bolster respondent’s narrative that due to widespread voter fraud, victory in the 2020 United States presidential election was stolen from his client. We conclude that respondent’s conduct immediately threatens the public interest and warrants interim suspension from the practice of law, pending further proceedings before the Attorney Grievance Committee (AGC). . . .
“Consideration of these factors in this case leads us to conclude that the AGC has made a showing of an immediate threat to the public, justifying [Giuliani’s] interim suspension. We find that there is evidence of continuing misconduct, the underlying offense is incredibly serious, and the uncontroverted misconduct in itself will likely result in substantial permanent sanctions at the conclusion of these disciplinary proceedings. . . .
“The risk that respondent 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 [for lawyer discipline] was brought, and despite [Giuliani] facing imminent suspension from the practice of law.”
The court first explained that disciplinary proceedings are “not to impose punishment for breaches of the Rules of Conduct,” but instead “to protect the public in its reliance upon the integrity and responsibility of the legal profession.” Typically, the court explained, the licensing authority does not take action against a license to practice law until a complaint is fully investigated and the authority commences a formal proceeding “in which the attorney has the right to be heard.” In the interest of “protecting the public, maintaining the integrity and honor of the profession, or deterring others from committing similar misconduct, the Committee takes the next step by sending the case to the court if it concludes the attorney should face public discipline.”
Only in the rarest and most serious cases — “where it is immediately necessary to protect the public from the respondent’s violation of rules” — will the licensing authority take immediate action against a law license while the investigation is pending. Under New York law, such an interim suspension may be based on “uncontroverted evidence of professional misconduct.” Also here, the misconduct was extremely serious and continuing, so the threat persisted, and it appeared that Giuliani would not refrain from further violations. The law does, however, afford the lawyer post-suspension due process.
In finding a substantial likelihood that Giuliani had violated New York’s Rules of Professional Conduct based on uncontroverted evidence, the court referenced the following provisions of those rules:
rule 3.3 which provides that: “(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal . . . .”
rule 4.1 which provides that: “In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person,” and
rule 8.4 “A lawyer or law firm shall not: . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation, . . . or (h) engage in any other conduct that adversely reflects on the lawyer’s fitness as a lawyer.”
Provided below are some, but not all, of the referenced instances of uncontroverted misconduct on which the court based the interim suspension of Giuliani’s license to practice law in the interest of protecting the public:
- Giuliani repeatedly said that more absentee ballots came in during the election than were sent out before the election in Pennsylvania. He claimed the state sent out only 1,823,148 absentee ballots before the election but 2,589,242 such ballots were counted in the election. The state sent out 3.08 million absentee ballots before the election and 2.5 million were tallied. Giuliani repeatedly claimed, falsely, there were some 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 multiple forums, including legislative committee meetings and broadcasts. He did not deny that his statements were untrue but blamed someone on his team and claimed not to have made such false statements knowingly despite that the only verified information, the only proof before the Committee relating to the absentee ballots, was readily available in the Pennsylvania open data portal.
- In a Pennsylvania lawsuit in which Giuliani was admitted based on his New York law license, he repeatedly represented to the Pennsylvania court that his client, Donald J. Trump for President, Inc., was pursuing a fraud claim when it was not. None of the claims in the amended complaint were based in fraud. The New York court said this was not “simply a passing mistake or inadvertent reference. Fraud was the crown of his personal argument before the court that day. . . . [Giuliani’s] fraud argument spanned pages 12–31 of the transcript.” The court noted that the proceedings were open by phone lines to as many as 8,000 journalists, and at least 3,700 people had dialed by the time he made the false statements. “Stating that a case presents a fraud claim when it does not, is a false and misleading statement about the status proceeding.”
- To discredit the results of the vote there, Giuliani repeatedly said dead people voted in Philadelphia. The number of dead people he claimed had voted was, however, a moving target. It went from 8,021, to 30,0000, to 21,000, and included heavyweight boxing legend Joe Frazier who, by the time of the election, had been removed from Pennsylvania’s voting rolls. “Despite unequivocal evidence,” Giuliani continued to broadcast his lie.
- Giuiani made “extensive and wide-ranging claims about Dominion Voting Systems Inc.’s voting machines manipulating the vote tallies to support his narrative that votes were incorrectly reported. Georgia, however, had completed a hand count of all ballots cast in the presidential audit. The hand audit, which relied exclusively on the printed text on the ballot-marking device or bubbled-in the choice of the absentee ballot, confirmed the results of the election with zero percent risk limits.”
- Giuliani, at various times, claimed 65,000, 66,000 or 165,000 underage voters illegally voted in Georgia in the general election. The audit, however, revealed there were zero (0) underage voters.
- Giuliani told lawmakers and the public that more than 2,500 Georgia felons voted illegally. The Georgia Secretary of State investigated the claims and found a statistically irrelevant number of felons voted (possibly 74). Giuliani repeated the false claim.
- Giuliani claimed dead people voted in Georgia, in numbers ranging from 800 to 6,000 which claim was refuted by the Secretary of State who concluded that as many as two (2) dead people may have cast votes in the general election. Giuliani repeated the false claim.
- Giuliani claimed “illegal aliens” had voted in Arizona, “way more than” 10,000, “the bare minimum is 40 or 50,000, the reality is probably about 250,000.” On another occasion he said, 32,000 undocumented people had voted in Arizona.
Giuliana raised two defenses to the motion for interim suspension: the rules as applied to him are a violation of the First Amendment; and he possessed a general lack of knowledge that the statements he made were false. The court quickly disposed of those defenses.
As to the First Amendment, the court explained:
“We reject respondent’s argument. This disciplinary proceeding concerns the professional restrictions imposed on respondent as an attorney to not knowingly misrepresent facts and make false statements in connection with his representation of a client. It is long recognized that ‘speech by an attorney is subject to greater regulation than speech by others.’ Unlike lay persons, an attorney is ‘a professional trained in the art of persuasion.’ As officers of the court, attorneys are ‘an intimate and trusted and essential part of the machinery of justice.’ In other words, they are perceived by the public to be in a position of knowledge, and therefore, ‘a crucial source of information and opinion.’ This weighty responsibility is reflected in the ‘ultimate purpose of disciplinary proceedings [which] is to protect the public in its reliance upon the integrity and responsibility of the legal profession.’ While there are limits on the extent to which a lawyer’s right of free speech may be circumscribed, these limits are not implicated by the circumstances of the knowing misconduct that this Court relies upon in granting interim suspension in this case.” [Citations omitted.]
As for Giuliani’s defense that he did not know the statements he made were false, the court said:
“On this motion, whenever the [Committee] has sustained its burden of proving that respondent made knowing false and misleading factual statements to support his claim that the presidential election was stolen from his client, respondent must then demonstrate that there is some legitimate dispute about whether the statement is false or whether the statement was made by him without knowledge it was false. Conclusory or vague arguments will not create a controverted issue as to whether there has been misconduct. Consequently, once the AGC has established its prima facie case, respondent’s references to affidavits he has not provided, or sources of information he has not disclosed or other nebulous unspecified information, will not prevent the Court from concluding that misconduct has occurred. Respondent cannot create a controverted issue of misconduct based upon what he does not submit to this Court. Nor will offers to provide information at a later time, or only if the Court requests it, suffice.” [Citations omitted.]
Guiliani had 20 days from the date of the interim suspension to request a hearing.
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com. Rob’s second novel, a beautifully written suspense drama that takes place in Utah, Wyoming, and Norway, dropped on November17, 2020. Available on Amazon, Barnes and Noble, Apple Bookstore and your favorite local bookshop, this novel, The Contortionists, which Rob himself narrates for the audio version, is a psychological page-turner about a missing child in a predominantly Mormon community. I have read the novel and listened to the audio version twice. It is a literary masterpiece. The Contortionists, however, is not for the faint of heart.
**Richard J Van Wagoner is my father. His list of honors, awards and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in many traveling shows domestically and internationally. My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his artwork. The photographs of my father’s art reproduced in https://medium.com/@richardvanwagoner and https://lastamendment.com are hers