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Giuliani, Temporary Suspension, Due Process, and “Political Speech”

by Hal R. Lieberman
Published in New York Law Journal,
  • Interim Suspensions
  • Legal Ethics

    • Lest anyone think the temporary suspension of former Mayor Rudy Giuliani was a violation of his constitutional rights to due process or free speech, the facts and law are to the contrary. Since the 1986 landmark New York Court of Appeals case, Matter of Padilla,1 later codified in the New York Rules for Attorney Disciplinary […]

    Reprinted with permission from the July 13, 2021 edition of the New York Law Journal ©2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 – reprints@alm.com or visit www.almreprints.com.

    Hal R. Lieberman, formerly chief counsel to the Departmental Disciplinary Committee, First Department (predecessor to the current Attorney Grievance Committee), is a partner at Emery Celli Brinckerhoff Abady Ward & Maazel LLP.

    1. 67 N.Y.2d 440 (1986).

    2. 22 NYCRR § 1240.9. In finding that interim suspensions were within the Appellate Divisions’ power, the New York Court of Appeals relied on Judiciary Law §90(2). During the years following Padilla, each of the Appellate Divisions promulgated rules providing for the interim suspension of lawyers. Subsequently, the statewide Rules for Attorney Discipline Matters, effective October 1, 2016, harmonized the Appellate Divisions’ rules concerning interim suspensions.

    3. See, e.g., Matter of Truong, 2 A.D.3d 27 (1st Dep’t 2003) (uncontested evidence that attorney offered a forged lease into evidence, gave false testimony in support of that document, and initiated frivolous litigation, temporarily suspended on the ground that his behavior constituted an immediate threat to the public interest).

    4. Matter of Giuliani, 2021 WL 2583536 (1st Dep’t, June 24, 2021) (citing Giuliani’s affidavit in opposition to the AGC’s petition).

    5. 22 NYCRR § 1240.9(a).

    6. 22 NYCRR § 1240.9(a)(5); see, e.g., Matter of Szegda, 22 A.D.3d 103 (1st Dep’t 2005) (subpoena of attorney’s bank records provided uncontested evidence that the attorney engaged in professional misconduct immediately threatening the public interest).

    7. RPC 3.3 provides: “(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.”

    8. RPC 4.1 provides: “In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person.”

    9. RPC 8.4 provides: “A lawyer or law firm shall not… (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”

    10. See Matter of Giuliani, 2021 WL 2583536 at **3–10.

    11. Id. at **30–32.

    12. See Alan M. Dershowitz, Giuliani’s Suspension from the Law is Unconstitutional, thehill.com, June 28, 2021 (conceding that “courts have long held that a lawyer is not entitled to the full protection of the First Amendment for statements made in court”).

    13. RPC 1.2(d) provides: “A lawyer shall not counsel a client to engage, or assist a client, in conduct the lawyer knows is illegal or fraudulent, except that the lawyer may discuss the legal consequences of any proposed course of conduct with a client.”

    14. RPC 3.1(a) provides: “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.”

    15. RPC 3.6(a); see Gentile v. State Bar of Nevada, 501 U.S. 1030, 1051 (1991).

    16. RPC 8.2(a) provides: “A lawyer shall not knowingly make a false statement of fact concerning the qualifications, conduct or integrity of a judge or other adjudicatory office or a candidate for election or appointment to judicial office.” See Matter of Holtzman, 78 N.Y.2d 184 (1991) (attorney disciplined for public dissemination of a false accusation of improper judicial conduct), see also Hal R. Lieberman, Should Lawyers be Free to Publicly Excoriate Judges?, Hofstra L. Rev. 785 (1998).

    17. See note 9, supra.

    18. See, e.g., Matter of Nixon, 53 A.D.2d 178 (1st Dep’t 1976); Matter of Mitchell, 40 N.Y2d 153 (1976); Matter of Cohn, 118 A.D.2d 15 (1st Dep’t 1986); Matter of Friedman, 196 A.D.2d 280 (1st Dep’t 1994).

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    Attorney Discipline System: Does it Meet ‘Due Process’ Requirements?

    by Hal R. Lieberman
    Published in New York Law Journal, August 31, 2012
  • General
  • Procedural

    • In a previous column,1 we focused on the historical constitutional development of due process rights in attorney discipline cases, and briefly highlighted the relatively few New York cases addressing procedural due process rights accorded to New York lawyers facing disciplinary charges. This article attempts to drill down by discussing several particular aspects of New York’s […]

    Reprinted with permission from the August 31, 2012 edition of the New York Law Journal ©2012 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 – reprints@alm.com or visit www.almreprints.com.

    1. Hal R. Lieberman, “New York’s Attorney Discipline System: How Much Process Is ‘Due’?” NYLJ, April 4, 2012.
    2. The Model Enforcement Rules are available at http://www.americanbar.org/groups/professional_responsibility/resources/lawyer_ethics_regulation/model_rules_for_lawyer_disciplinary_enforcement.html.
    3. 67 N.Y.2d 440 (1986).
    4. Id.
    5. 79 N.Y.2d 520 (1992).
    6. Id. at 525 (citations omitted).
    7. 22 N.Y.C.R.R. §603.4(e)(2).
    8. In any case, an interimly suspended attorney would be well advised to request a prompt post-suspension hearing, if grounds exist, and in that regard should fully cooperate with the disciplinary investigation if prior non-cooperation contributed to the interim suspension.
    9. 118 A.D.2d 15 (1st Dept. 1986).
    1. See, e.g., Matter of Slater, 156 A.D.2d 89 (1st Dept. 1990); Matter of Ryan, 189 A.D.2d 96 (1st Dept. 1993); Matter of MacKenzie, 32 A.D.3d 189 (2d Dept. 2006); Matter of Klarer, 66 A.D.3d 247 (2d Dept. 2009); Matter of Capoccia, 272 A.D.2d 838 (3d Dept. 2000).
    2. Matter of Schwartz, 24 N.Y.2d 65 (1969).
    3. Id.
    4. See Hal R. Lieberman, “Use of Collateral Estoppel in Attorney Disciplinary Proceedings,” NYLJ, July 27, 1998; see also Commissioner of the State Insurance Fund v. Low, 3 NY2d 590 (1958) (describing collateral estoppel as “essentially a rule of justice and fairness,” but one that can also be “elusive and difficult to apply”).
    5. Matter of Capoccia, 59 N.Y.2d 549 (1983); Matter of Friedman, 196 A.D.2d 280 (1st Dept. 1994).
    6. 390 U.S. 544 (1968).
    7. The respondent in Matter of Friedman petitioned the U.S. Supreme Court for a writ of certiorari, which the Court denied on Oct. 3, 1994. 513 U.S. 820 (1994).
    8. Model Enforcement Rule 18.3.
    9. See N.Y. A.P.A. §306(1).
    10. 10 N.Y.3d 669 (2008).
    11. Model Enforcement Rule 18.2.

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