Giuliani simply had no good-faith basis in fact and law for the suit he brought, and he lied to the court about what he was alleging.
Donald Trump has yet to face any serious formal consequences for his actions in challenging the 2020 election (although a criminal investigation in Georgia remains pending). But his legal team has not been so fortunate. In the latest news, a disciplinary committee of the D.C. bar has recommended that Rudy Giuliani lose his license to practice law in D.C. as a result of frauds on the Pennsylvania courts in 2020 election litigation. The decision of the Ad Hoc Hearing Committee of the Board on Professional Responsibility is similar to a trial, in terms of making factual findings. It can be appealed to the full board, which makes the decision about what sanctions to impose, and ultimately appealable to the District of Columbia Court of Appeals, which is D.C.’s equivalent of a state supreme court. Only if Giuliani asserts some violation of the federal Constitution or laws could he then appeal further to the U.S. Supreme Court, which is unlikely to take interest in a bar disciplinary decision.
This is one of several such proceedings. Jenna Ellis agreed to a censure by the Colorado bar for admitted misrepresentations in TV interviews and on Twitter about Trump’s legal challenges. Lin Wood agreed to retire from the practice of law to avoid being disbarred in Georgia. Sidney Powell won a victory in Texas with the dismissal of a disciplinary charge, but the state bar is appealing, and she faces an additional proceeding in Michigan. John Eastman is currently in the midst of a hearing before the California state bar.
On the one hand, this is a sign that the system works. Back in November 2020, I called out the Lincoln Project for trying to hound reputable lawyers away from representing Trump, a campaign that violated two of the legal system’s most fundamental values — the right of every client to representation, and the social value of resolving important disputes by public adjudication after everyone has his day in court. I argued that, if lawyers misbehaved in the course of representing Trump, then they could be punished — not simply because their client was unpopular or his cause futile:
Lawyers can, of course, be held responsible — in their professional reputations and in sanctions by the bench and bar — if they themselves misbehave, such as by making knowingly false filings and frivolous legal arguments. Those forms of discipline are not used very often in the law, and the standards should not be changed now simply because liberals in the profession want to strike at Trump. But they ensure that the system can handle this.
Events have proven me correct. Trump had his day in quite a lot of courts, and he was unable to produce sufficient evidence to make his claims of fraud stand up in any of them. Of course, Trump made use of those court proceedings to prolong the appearance that he had legitimate grounds to contest the election, but he tried other avenues as well (such as state legislatures), and we’d be in a worse position if Trump had not been able to use the courts. We would, by contrast, be in a better position if Trump had been represented by lawyers who could resist presenting some of his worst arguments.
The bad news about these disciplinary proceedings is that the bar disciplinary system is advancing a bunch of grounds for discipline that are rarely used against lawyers for non-right-wing clients and causes, and is pushing the envelope in some of them, most notably the Eastman case and the discipline of Ellis for statements made in the media. Frankly, lawyers get away with a lot because they are policed only by their own, who tend not to very aggressively punish any sins other than stealing money from clients. We’d have a better legal system if the bar authorities more regularly punished lawyers who lie to courts. They tend not to do so in order to avoid chilling effects on lawyers who work in gray areas, or who might be sincerely overzealous.
The centerpiece of the hearing panel’s conclusion was Giuliani’s allegation that Pennsylvania must have counted fraudulent votes simply because it imposed observational boundaries that obstructed views of vote-counting:
Mr. Giuliani . . . contended that observational boundaries were a per se fraud that he had “personally witnessed” He claimed they were “a deliberate scheme of intentional and purposeful discrimination” against the Trump campaign, concluding that Democrats “stole an election . . . in this Commonwealth” and that he had “hundreds of affidavits” supporting his assertion. These claims were simply not true.
Mr. Giuliani did not offer any evidence that fraudulent mail-in votes were actually cast or counted. In his view, the existence of observational boundaries was enough: the voter “might not have done anything wrong, but [because of the boundaries] the person counting did something wrong and therefore they’re not counted.” The only evidence he offered to the court were photographs showing that observers could not see the details of ballots at canvassing sites in Philadelphia and Allegheny Counties. Because canvassing absentee and mail ballots subject to observational boundaries was a “planned fraudulent process,” he argued, virtually all of the 682,770 mail-in ballots in Philadelphia and Allegheny counties should not have been counted. [Alterations omitted.]
As the panel noted, this inverted what the legal system requires, which is that complaints be supported by evidence, not just by demands that the defendant prove a negative:
Respondent [Giuliani] thus commenced litigation without evidence that its core factual claim was true. He admits as much, maintaining that the “fastmoving” case “did not permit him to investigate fully his client’s position as he would normally do in any other case.” Even without supporting evidence, he claims, it was reasonable for him to “draw an inference and make an argument that the vote count was illegal and contrary to law.” We reject this argument.
Now, the speed and chaos of election litigation should be a mitigating factor when lawyers file complaints without the same level of exhaustive pre-filing investigation we normally expect, especially if those lawyers (unlike Rudy) candidly inform the Court that they are dropping claims and theories that aren’t panning out. As the panel noted, Giuliani’s lame excuse was that “a complaint is a prediction. It’s not a statement of what you definitely are going to get, what you’re definitely going to prove.” That is far too often the excuse of the plaintiffs’ bar, but at least in federal court, as the panel correctly noted, the Supreme Court’s Twombly/Iqbal standard for pleading a civil complaint requires actually making good-faith allegations of fact that would support all the elements of a legal claim.
The panel also sanctioned Giuliani for claims that his clients had been unable to cure defective ballots; the panel noted that he could have filed suits asking for those votes to be counted, but instead tried to get the votes of entire counties thrown out on the theory that they shouldn’t have been allowed to cure ballots. The panel found that, even if the underlying legal theory wasn’t entirely frivolous, the requested remedy was. The panel did dismiss some lesser charges.
The hearing panel found violations of two rules. Pennsylvania Rule 3.1 states 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, which includes a good faith argument for an extension, modification or reversal of existing law.” Under the “objective test” of Rule 3.1, Giuliani simply had no basis to bring the suit he brought. Pennsylvania Rule 8.4(d) instructs lawyers not to “engage in conduct that is prejudicial to the administration of justice.” The panel found that “Mr. Giuliani brought a case that had no factual support. It caused an astonishing waste of the resources of the District Court, the Third Circuit, and multiple defendants in a compressed time frame.”
I’m skeptical of the Rule 8.4(d) theory here, given how often lawyers get away with wasting the time of courts, litigants, and witnesses. But the Rule 3.1 finding here is sound: Giuliani simply had no good-faith basis in fact and law for the suit he brought, and he lied to the court about what he was alleging. That’s a sad end to a highly distinguished public career, and worthy of sanction by the bar. I remain, however, unconvinced that the standards applied to him will be evenhandedly applied to lawyers who represent clients and causes less unpopular with the D.C. bar.