The District of Columbia Bar Association’s disciplinary counsel recommended Thursday that lawyer Rudy Giuliani be disbarred after a panel determined that he likely violated a rule of professional conduct when he led efforts to challenge the results of the 2020 presidential election in Pennsylvania.
The counsel, Hamilton Fox, alleges Giuliani had frivolous reasons for claiming election fraud in his suit before a federal district court in Pennsylvania. As Fox put it at a hearing concerning the potential disbarment, Giuliani “weaponized his law license to bring a frivolous action in an attempt to undermine the Constitution.”
Fox makes a compelling case that Giuliani drew up an argument and submitted papers to a federal district court that were almost certainly frivolous. But does that warrant suspension?
The panel’s recommendation of disbarment is not the final word, however. Ultimately, it is the Court of Appeals that will decide Giuliani’s discipline. Giuliani’s attorney, John Leventhal, has argued that there’s no ground for disbarment because there was reasonable support for the allegations of fraud Giuliani presented in the 2020 election suit, and that there is no evidence that Giuliani “intentionally violated” the rules of professional conduct.
But those rules require that a complaint alleging fraud must state the fraud with “particularity,” i.e., provide specific facts. A plaintiff must allege enough to reveal the existence of all the requisite elements of fraud. Allegations that are just conclusions about the fraud are not enough.
What did Giuliani provide to support the lawsuit’s claim? Mostly nonsense, according to Fox. His allegations included a misquoted excerpt from the Carter-Baker Commission on Federal Election Reform’s 2006 report about the general potential for mail-in ballot fraud that made no reference to Pennsylvania. And his “300” affidavits allegedly showing there were enough improper votes to overturn the election? According to Fox, they were statements that were unsupported; unrelated to Trump voters; involved conduct outside the involved counties; and were isolated incidents that could not have offset the majority of the more than 80,000 votes Joe Biden received in the state.
Given all this, Fox makes a compelling case that Giuliani drew up an argument and submitted papers to a federal district court that were almost certainly frivolous. But does that warrant suspension?
Probably. But in general, lawsuits that lack a factual basis should be dismissed. And a dismissed lawsuit doesn’t necessarily mean an attorney should be disciplined. Fox points out that several of Giuliani’s allegations at the heart of his fraud suit were more than wrong — they seem to be obviously, ridiculously wrong. Filing insufficient complaints might ordinarily not be worthy of discipline, but filing an insufficient complaint that seeks to disenfranchise millions of voters, with facts that are patently false, might be an exception.
As it happens, filing a far-fetched complaint is not one of the more common reasons for attorney discipline. Most of the time, attorneys are disciplined for reasons like failure to communicate with clients, conflicts of interest and misuse of client trust accounts. That last one is by far the most egregious offense and is often a “death sentence” for a lawyer’s career.
Disciplinary boards are willing to stop at mere censure of a lawyer with a substance abuse problem or a lawyer who doesn’t call his clients back. But a lawyer who misappropriates client funds will be suspended at minimum, and probably even disbarred. Even a lawyer’s bookkeeper’s mismanagement of client funds is grounds for the attorney being disciplined, including in cases when the lawyer didn’t know about it.
It’s tempting to feel that filing unjustified complaints should result in more disciplining of attorneys, and it may seem strange that filing civil complaints without a factual basis is not one of the top reasons for attorney discipline. But few attorneys have access to all the evidence before they file a lawsuit. Giuliani had a point, in principle, when he told the D.C. Bar’s panel that “You don’t start a lawsuit being able to prove — I mean, you’re very lucky when you do. You don’t start a lawsuit being able to prove, but being able to responsibly allege.”
It’s a garbled interpretation, but he’s talking about the often lenient minimum factual standards for a complaint to survive a motion to throw it out of court. In the District of Columbia’s Superior Court, for example, a complaint need only “contain sufficient factual matter, accepted as true [by the court], to state a claim … that is plausible on its face.”
It’s not unheard of for clients to put off talking to a lawyer about their claim until they are dangerously close to the deadline for filing a complaint. So often lawyers find themselves cobbling together complaints when they are in danger of facing an expiring limitations period.
Moreover, the lawyer ordinarily files the complaint based on what the lawyer knows at the time of filing. Then, during the discovery process, both sides are required to turn over relevant documents, provide testimony and share other evidence to the one another — sometimes for the first time, as a suit can be necessary to compel cooperation. Often it’s only after discovery that the plaintiff can really flesh out a claim.
Is Giuliani’s conduct worse than the typical failure to allege fraud? Probably. But in most cases, the appropriate response to a poorly supported fraud filing is the one that’s always before the court: to dismiss the case.