Trump’s efforts to overthrow the election are making a lot of people angry, among them Rep. Bill Pascrell Jr. (D-NJ), who sent letters to the bar associations of Arizona, Michigan, Nevada, New York, and Pennsylvania seeking the disbarment of 23 lawyers including Rudy Giuliani. (Read story here.)
In his letter to the bar associations, Pascrell (photo, left) accused the lawyers of pursuing “frivolous” lawsuits.
Several GOP congressmen closely aligned with Trump retaliated by introducing a resolution to censure Pascrell, which of course won’t go anywhere in the Democratic-controlled chamber.
Is this just a pissing contest among politicians, or is there something to the argument that Trump’s lawyers should be punished? That’s a delicious question. Certainly, their activities — lying in press conferences, floating false conspiracy theories, flooding the courts with baseless lawsuits (many of which have been withdrawn, and all of which they’re losing) — are censurious, although not necessarily by lawyers’ licensing authorities.
There’s enough possibility of that, though, that a number of prominent law firms and lawyers have pulled away from representing Trump in his fraudulent pursuit of election fraud claims. Many commentators express skepticism that anything will happen to those who are. (See, e.g., here and here.) But anytime someone files a formal complaint against a lawyer, the bar association has to investigate and make a determination.
What are the chances Pascrell’s complaint against Giuliani, for example (read it here), might stick? It meets the essentials to trigger a response, i.e. it cites specific acts and rule violations:
“Mr. Giuliani may have violated Rule of Professional Conduct 3.1 which requires that ‘[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.’2 Mr. Giuliani may have also violated Rule 8.4(c) which posits that it is professional misconduct for a lawyer ‘to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.’3”
It is now for the New York bar to determine whether Giuliani did, in fact, violate these rules, and if he did, what discipline is warranted. An article in Business Insider (here) cited a legal ethics commentator who suggested his “multitude of suits may have crossed the ethical line,” but also quoted a law professor who thinks “his conduct won’t result in disbarment … it’s more likely that he’d be hit with a lesser reprimand.”
And if Giuliani isn’t disbarred, it’s unlikely any of the other lawyers will be, either. Generally speaking, his conduct is more egregious than theirs (with a couple of possible exceptions).
Part of the problem is,
“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.'”
(Quoted from Business Insider article linked above.) It’s a fine line. If Giuliani or some other lawyer merely filed lawsuits to gum up the election process, with no intention of actually pursuing the cases, then they’re clearly abusing the legal process and should be sanctioned. Likewise if they’re caught lying to the court, fabricating evidence, or otherwise practicing a fraud upon the court (this differs from conduct outside the courtroom, in which lawyers have far more leeway). But if they actually pursue a claim, they’re entitled to their day in court, no matter how outlandish it is — within limits.
If the case is truly frivolous, the judge can impose Rule 11 sanctions, which among other things may require the offending attorney to reimburse the other side for its costs of defending against the claim; but Rule 11 is a rule of court procedure, not a lawyer discipline rule, and doesn’t affect the attorney’s license (although repeated Rule 11 sanctions can become the basis for a disciplinary proceeding against the lawyer).
Another problem is that Giuliani’s offenses against democracy and decency aren’t of the sort that bar associations typically punish lawyers for; those include: Conviction of a felony, theft of client funds, and failure to pay bar dues. (The latter is extremely serious and results in summary suspension without a hearing.) Other stuff that might be called “violations” is squishier, and licensing authorities (usually the state’s highest court) and their minions (the bar associations) tend to be squeamish about punishing lawyers for bad behavior (although it’s not entirely out of the question).
Professor Jacobowitz, mentioned above, suggested that Giuliani’s social media posts and press conferences “could be a risk” factor for him, but that’s because they potentially could be used to establish an intent to engage in frivolous litigation. Still, he’d more likely “face some kind of reprimand rather than disbarment over those issues,” Jacobowitz said.
And then there’s the small matter of ongoing criminal investigations into Giuliani’s Ukraine shenanigans; that’s where things could get really interesting.
Keep in mind, also, that Rudy (right, supplicating) isn’t in the pink of youth and one of these days the divine power (screen grab, left) may have assignments for him someplace other than on this piece of space rock. God’s justice is so much more complete than ours, why even bother to go after his license to practice law?
For what interest it may have, the other lawyers Rep. Pascrell filed bar complaints against are:
- Arizona — Kory Langhofer, Thomas Basile, Brett Johnson, and Eric H. Spencer (read complaint here);
- Michigan — Mark F. Hearne, II, Stephen S. Davis, and J. Matthew Belz (read complaint here);
- Nevada — Brian Hardy, Susan Gillespie, Alex Calaway, Donald Campbell, J. Colby Williams, and David O’Mara (read complaint here);
- Pennsylvania — Marc A. Scaringi, Brian C. Caffrey, Ronald L. Hicks, Jr., Carolyn B. McGee, Linda A. Kerns, Joseph Pizzo, Kenneth Ferris, Jonathan
Goldstein, and Britain Henry (read complaint here).
Finally, what about Trump lawyer Joseph diGenova, who said in a broadcast on Monday, November 30, 2020, to who knows how many listeners, that Chris Krebs, the cybersecurity official fired by Trump for saying the election was secure, “should be drawn and quartered, taken out at dawn, and shot”? (Read story here and watch CNN video here.)
Sure, it’s a rant, not an actual threat, and was spoken outside a courtroom. But he did explicitly advocate violence, and his remarks could inflame some listener to go out and try to kill Krebs. And diGenova did say it in the context of active litigation in which he is involved; thus, he can be deemed to have been advocating on behalf of his client when he said it. Should he be disbarred for that remark? If there’s a leading candidate among Trump’s lawyers for disbarment, I’d say it’s him. Urging violence against a federal official in retaliation for performing his official duties also is a federal felony, so this could even get diGenova sent to prison.
Update #1 (12/8/20): Rudy Giuliani alleges he’s “making a rapid recovery” after the divine intervention described above, and expects to be released from the hospital tomorrow. (Read story here.) Guess even God doesn’t want him; can’t say I blame Her.
Update #2 (12/8/20): Krebs filed a civil lawsuit on Tuesday, December 8, 2020, against diGenova and Newsmax, which disseminated diGenova’s remarks, for defamation, harassment, and emotional distress. The lawsuit seeks unspecified damages in excess of $75,000 and a court order requiring Newsmax to remove the video of diGenova’s remarks from its website. (Read story here.)