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The Ethics of Honesty: A Lawyer's Duty of Candor In and Out of the Courtroom

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The Ethics of Honesty: A Lawyer's Duty of Candor In and Out of the Courtroom

In August 2021, The Washington Post released a transcript of a February 2018 interview in which Rudy Giuliani told federal agents it was permissible to “throw a fake” during an electoral campaign. Just weeks before that transcript became public, Giuliani was suspended from the practice of law in New York for baselessly asserting that thousands of felons and dead people voted during the 2020 presidential election and that Georgia voting machines had been manipulated. This program will examine the ethics rules implicated by Giuliani’s recent conduct—ABA Rules 3.3, 4.1, and 8.4—and provide guidance on how to avoid suffering Rudy’s fate.

Presenters

Hilary Gerzhoy
Associate
Harris, Wiltshire & Grannis LLP

Transcript

Hilary Gerzhoy:   Hello. My name is Hilary Gerzhoy. And I am vice-chair of the legal ethics and malpractice group at Harris, Wiltshire, and Grannis. My practice focuses on helping lawyers and law firms in disciplinary investigations and prosecutions. Today I will be presenting a CLE on The Ethics of Honesty: A Lawyer's Duty of candor, both In and out of the Courtroom.

  The agenda for today will be to cover the recent conduct by Rudy Giuliani involving statements made to the court and also statements made to the press. I will go through some of the recent statements that Giuliani has made, and filings he has been a part of. And I will go through the applicable ABA model rules, in particular, Rule 3.3, Rule 8.4(c), and Rule 4.1, which are the rules that deal with a lawyer's duty of candor and honesty.

  I'll then go through the case law that has analyzed instances in which lawyers have been accused of being dishonest, both in and out of the courtroom. And then I will conclude by providing some tips for compliance, and particular lessons we can take from the recent sanctions.

  So the first part of the presentation is going to go through false or misleading statements to the court. As many of you are probably aware, in June of 2021 the New York Supreme Court Appellate Division suspended Rudy Giuliani from the practice of law for violating the core principles of professional conduct that prohibit a lawyer from being dishonest and making false statements to courts or third parties. This was in the first department, which is where Giuliani was admitted to the bar.

  A temporary suspension from the practice of law is quite an extraordinary sanction. It is not typical that a disciplinary panel will decide that, pending investigation, a lawyer should be suspended. Usually there is a process by which a lawyer is charged with violations of various rules of professional responsibility, there's an investigation, there's an opportunity to make a showing by the attorney, and then there's a final disposition. So a temporary suspension is not something that we see all that much.

  In support if its decision to impose a temporary suspension, the court said that Giuliani had made what it refers to as baseless statements that thousands of felons and dead people voted during the 2020 election, and that Georgia voting machines had been manipulated.

  ABA model rule 3.3(a) prohibits a lawyer from knowingly making a false statement of fact or law to a tribunal or failing to correct a false statement of material fact or law previously made to the tribunal. On its face, that seems pretty straightforward. Don't make a knowingly false statement. And if you realize that you've made a knowingly false statement that is material, you have a duty to correct it.

  There are some more nuanced aspects of rule 3.3. And I will note here that when relying on the rules to determine what conduct is prohibited and what conduct is allowed, it's important to look at your local rules. Every state has adopted something like the ABA model rules. But each state has slightly different versions of the rules. So it's important to consult your state's rules to make sure that you're in compliance. For purposes of this presentation, I'm going to be going through the ABA model rules because most jurisdictions follow some version of what I've outlined here.

  So regarding Rule 3.3. There is a diligent inquiry requirement, which means that you cannot make a factual statement without a reasonably diligent inquiry to determine if the statement is accurate. This is included in Comment three to Rule 3.3. In a 2003 Arizona ethics opinion, the court held that an attorney may verify a client's pleading, so long as the attorney believes the document's assertion are true on the basis of a reasonably diligent inquiry. So in that case, the question was whether or not an attorney can say that a client's pleading is accurate. And what is required to make that assertion to a court is that the attorney has done a reasonably diligent inquiry. But what a reasonably diligent inquiry entails is not always completely clear.

  I'm going to talk a little bit about some recent developments that have happened with respect to claims that the 2020 election was stolen. So on November 23rd, 2021, two lawyers in Colorado, Gary Fielder and Ernest Walker, were ordered to pay $187,000 in sanctions for a suit that claimed that the 2020 election was stolen as part of a vast conspiracy. Colorado U.S. Magistrate Judge Neureiter chastised the lawyers for what was referred to as wasteful, extraordinary, an over-broad suit. The approval of the $187,000 in sanctions, and in particular attorney's fees, was based on a request by FaceBook, Dominion Voting Systems, and the Center for Tech and Civic Life, and the governments of Pennsylvania and Michigan, all of whom had been named as defendants in this suit, which sought $160 billion in damages.

  The suite largely rehashed false claims that had already been made by Trump and his various allies involving electronic ballot switching. The judge held that the lawyers had sought to launder their false claims through the court system to give them a "veneer of respectability," contributing to the public distrust of the 2020 election that ultimately led to supporters of Trump storming the Capitol on January 6th.

  The judge said that, "It bears repeating that as officers of the court, these attorneys have a higher duty and calling that requires meaningful investigation before prematurely repeating in court pleadings unverified and un-investigated defamatory rumors that strike at the heart of our democratic system and were used by others to foment a violent insurrection that threatened our system of government."

  One question that comes up in the context of these sanctions is what about zealous advocacy. What is the line between being a zealous advocate for your client and conducting a reasonably diligent inquiry, and ensuring that you are not making a false statement of material fact to the court? Both failing to correct a false statement of material fact and also not making a false statement of fact in the first instance. And addressing this comment, the judge said, "I take into account the risk that this substantial sanction might chill zealous advocacy for potentially legitimate claims. But I conclude that the repetition of defamatory and potentially dangerous, unverified allegations is the kind of advocacy that needs to be chilled. Council should think long and hard and so significant pre-filing research and verification before ever filing a suit like this again."

  On December 5th, 2021 Judge Parker, a federal judge in Michigan, ordered that Sidney Powell and Lin Wood, two of Trump's lawyers, both Powell and Wood, as well as several other attorneys associated with the cases had to pay $175,000 in fees to the state of Michigan and the city of Detroit, for bringing suit alleging that the 2020 election was stolen because felons had voted and voting machines had been manipulated. Judge Parker called the suit a profound abuse of the judicial process. In her decision, she ordered the attorneys to pay $153,000 to Detroit, and $22,000 to the state for legal fees incurred while they were defending the action.

  In support of her decision, she stated, "Plaintiff's council exploited their privilege and access to the judicial process to file a lawsuit that threatened to undermine the results of a legitimately conducted national election." In August of 2021, Judge Parker had issued sanctions against Powell and Wood, in addition to seven other lawyers who were involved in a lawsuit challenging the Michigan 2020 results. And she concluded there that the lawyers attempted to deceive a federal court and abused well established rules by relying on conjecture as evidentiary support for their claims.

  So we've talked about what is a diligent inquiry. In these particular instances it's what is a diligent inquiry not. What did the attorneys do that clearly fell shy of their obligations. The second more nuanced aspect of Rule 3.3 is that Comment 3 holds that there are circumstances where failure to make a disclosure is the equivalent of an affirmative representation. So there are times in which failing to give the court information, as opposed to affirmatively stating a false fact, can amount to a false statement. The contours of what impermissible omissions are is really a fact-bound inquiry. And it depends on the circumstances of the case.

  It's important to note that whether or not you violate Rule 3.3 has nothing to do with your motive. So a lawyer who knowingly makes a false statement of fact or law while representing a client violates 3.3(a) and 4.1(a), which we'll talk about momentarily, if the statement is material, regardless of their motive in doing so. So Wahlder is an example of this, in which there was evidence that the lawyer did not intend to defraud anyone with his filings, but his reluctance to disclose that a settlement had occurred during a pre-trial hearing indicated that his conduct was knowing, since he feared that he would be exposed.

  So while there was evidence presented that the court found persuasive that he did not intend to defraud, he certainly knowingly failed to correct a statement. And that was enough, regardless of his motive in doing so.

  So as I referenced earlier, in a March 22nd court filing that has now become somewhat infamous, Sidney Powell, who was a lawyer who was involved in the challenges to the 2020 election, attempted to defend herself against Dominion Voting System's defamation suit. So Dominion sued Sidney Powell, among other, for defamation because she had claimed that their voting machines were faulty. And in defense of the defamation claim she said, "No reasonable person would conclude that my statements were truly statements of fact."

  Unfortunately this is not a persuasive defense, likely, in a defamation case. It's also not a persuasive defense in a disciplinary proceeding. A lawyer breaches her duty of candor by knowingly making a false statement, whether the fact finer is in fact deceived or even reads the false statement. Diaz is an excellent example of this. In that case a lawyer was held to have breached his duty of candor by making false statements in a series of pleadings that it turned out the judge had not even read yet. They were waiting on the judge's docket. They hadn't been reviewed.

  But the fact that there were false statements in pleadings, regardless of the fact that they had not been reviewed by the court, was sufficient for the court to view a violation of the duty of candor.

  So when Sidney Powell doubles down on the falsity element when she says that her statements about voter fraud were outlandish, inherently improbable, and impossible, she's really proving the validity of the bar complaint against her in Michigan, because she is admitting to making false statements to a court.

  So next let's talk about false or misleading statements to the press. So in August of 2021, the Washington Post published a transcript of a February 2018 interview that Rudy Giuliani did with a special agent of the DOJ's Office of Inspector General. He was accompanied by his attorney at the time, who was a partner of Giuliani's Marc Mukasey. During the interview, referring to a lawyer's lack of obligation for honesty in politics, Giuliani told the agents during the interview that it was permissible to "throw a fake during a political campaign." His law partner then added, "There's no obligation to tell the truth."

  In particular, the portion of the transcript that deals with this, the special agent was asking about various statements that Giuliani had made on Fox News in particular, and then on a series of podcasts and radio shows in which he had made the allegations that we were discussing before, regarding wide spread voter fraud, defective voting machines, felons voting.

  And Mr. Mukasey interjects during the interview and says, "Can I just point out one thing that is maybe a little bit out of bounds, but in the heat of a political campaign I think everything that the Mayor is saying is accurate and obviously in the heat of a political campaign, on television, I'm not saying Rudy necessarily, but everybody embellishes everything." To which Giuliani responded, "Oh you could throw a fake." Mr Mukasey added, "You're under no obligation to tell the truth."

  So, can you throw a fake? Let's talk about the rules that apply. So ABA Model Rule 4.1 states that, "In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third party, or fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6," which is the confidentiality obligations.

  The first question is, who is your client, to know whether or not you're within the contours of Rule 4.1. So the preamble to the ABA rules has Comment 17. And it states that, "Most of the duties flowing from the lawyer/client relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. Whether a lawyer/client relationship exists for any specific purpose can depend on the circumstances and may be a question of fact."

  Rule 8.4(c) state that, "It is professional misconduct for a lawyer to: engage in conduct involving dishonesty, fraud, deceit, or misrepresentation." And there's a distinction here because in the ABA rules, 8.4(g) calls out, "Conduct related to the practice of law," specifically. But 8.4(c), which prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation has not distinction between conduct that's related to the practice of law and conduct that is unrelated to the practice of law.

  And we'll talk about some case examples later on that really deal with this issue, when a lawyer engages in a conduct that a court has held is dishonest but has nothing to do with his or her practice as a lawyer. So it's important to note that not all states have identical Rule 8.4(c) language. In Virginia, for example, 8.4(c) states that it is professional misconduct for a lawyer to, "Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation which reflects adversely on the lawyer's fitness to practice law." That qualification, the adversely reflecting on a lawyer's fitness to practice law, is not included in the ABA version of 8.4(c), which simply holds that you cannot engage in conduct involving dishonesty, period. Full stop.

  So let's talk about what the case law says and what courts have deemed to be dishonest conduct by lawyers. So the first case is Scanio. And this is a D.C. case from 2007. So in that case a lawyer was suspended from the practice of law for 30 days for being dishonest in his dealings with Geico when he was submitting an insurance claim. And it had nothing to do with his practice as a lawyer.

  I'm going to talk about a bunch of these examples that go through instances in which a lawyer has been sanctioned for doing something completely outside the practice of law. So in that case, in Scanio, what happened was the respondent had gone to the hospital and missed a day of work after his car was rear-ended. A claims adjuster for Geico, who was the insurance company of the driver that rear-ended the respondent, called the respondent to get information about his economic loss to assess damages. In viewing the facts of the case, the D.C. Court of Appeals held the respondent was dishonest in his dealings with Geico because he had falsely told the claims adjuster that he was not paid hourly and that he had been docked for missed work, when it turned out he was in fact paid hourly and he was not docked for missed work. That violation, that dishonest statement was enough to get him a 30 day suspension for violating Rule 8.4(c).

  And I'll note here that the court said that sanctions for violating 8.4(c) run the gamut from informal admonition, which is the lowest form of discipline under the D.C. rules, to disbarment, which is, of course, the highest form of discipline.

  So lawyers have received 30 day suspensions for a series of other activities that one might not necessarily assume would be worth of a 30 day suspension. So one example is the Hahn case, in which the individual put on his resume that he had held jobs he had not, and he altered his law school transcripts. That came to light and he was suspended for 30 days. In a 2001 D.C. case, an individual had attempted but failed to steal $200 worth of flowers and potting soil from a local florist. Despite the fact that the individual was intercepted and was not successful in the theft, nonetheless that individual was suspended for 30 days. And in Kent, which was a 1983 case ... From D.C. in 1983, not a 1983 case. In Kent, an individual was suspended from the practice of law for 30 days for shoplifting from a department store.

  So none of this conduct had anything to do with practicing as a lawyer. The closest is the Hahn case, in which the individual falsified a resume and altered a law school transcript. But nothing that was done in the course of being a lawyer, but nonetheless, worthy of suspension.

  Schneider is a really interesting example of how far courts go in interpreting violations of 8.4(c), and how much motive is really irrelevant for the analysis. So in Schneider, a first-year associate was suspended from the practice of law because he altered credit card receipts that he would have actually been entitled to receive reimbursement for. So the individual as working on a case. The client allowed for reimbursement of out-of-pocket expenses. He had been traveling and he had paid for a series of things with a credit card that he had reflected. And he had paid for a bunch of things with cash. He altered his credit card receipts when he submitted them for reimbursement so that the total amount reflected what he had paid for in cash. And they were expenses that would have been reimbursable had he not submitted a receipt at all.

  And the hearing committee found that even though he did not intend to personally gain anything from the alterations, he was nonetheless suspended for 30 days because he altered credit card receipts when he submitted them.

  In Attorney Grievance Commission versus Sweitzer the respondent was indefinitely suspended from the practice of law for signing his wife's name on a motor vehicle administration title transfer form without her authority, in an attempt to avoid paying $135 in vehicle sales tax. In that case bar council had alleged the respondent had acted deceitfully when, after signing under penalty of perjury, he presented a gift certification form that contained a forged signature of his former wife, to the motor vehicle administration. And he had misrepresented the nature of his transaction by representing that the gift certification had been approved by his wife and that he had the authority to sign on her behalf. In that case he was suspended from the practice of law indefinitely, because of acts of dishonesty and deceit.

  In the Laurent case, which came out of Florida in 1993, the respondent was suspended from the practice of law for 91 days for misrepresentations he had made in the private sale of his condo. In that case there were multiple issues that were involved. But one of the issues was that the respondent, who was no longer a practicing lawyer, had prepared and executed warranty deeds to purchasers of time share units that were part of a company that he had founded. And he represented that the purchasers were receiving free and clear title to their units. But in fact there was cloud on their title, which was from a mortgage, and he was aware of that fact.

  And the complaint also alleged that the respondent misdirected and converted his own funds received from purchases, which should have been used to satisfy the underlying mortgage. And instead he kept those funds for himself.

  In the Leisure case, which came out of Oregon in 2005, the respondent was suspended from the practice of law when she wrote checks from her account that she knew that her account could not cover. And her suspension was for 18 months, and it was for conduct, again, having nothing to do with her practice as a lawyer. But based on her personal business affairs there was evidence that was produced at the disciplinary hearing that she had written checks and she knew that those checks were going to bounce. And that warranted an 18 month suspension, even though she was not practicing as a lawyer at the time.

  So I'm not going to go into some tips for compliance, and how to avoid running afoul of these rules. So the first is that you need to be very cautious when you interact with the press. And that's particularly the case when you are representing a client and you are talking to the press about your client's case. And it's also true just in statements that you make to the press generally.

  It is often the case that lawyers who are working on high profile cases are asked to give statements to the media. Giuliani was asked to give statements. He also sought out the opportunity to give statements. But I think his suspension from the practice of law is a cautionary tale that simply because you're talking to the media doesn't grant you immunity for statements that you make, and that you're still held to account by the rules of professional conduct.

  So throwing a fake is not telling the truth. The idea is that you are not being truthful in your statements, which is conduct that the ABA and every jurisdiction in the U.S. says is dishonesty, fraud, deceit, or misrepresentation. And there really is no shelter in the fact that you're acting as a private citizen.

  So there was a 1994 case that came out of the District of Columbia's Court of Appeals. The case is In Re Jackson. And it held that simply by being a member of the bar, a lawyer is "Held to a high standard of honesty whether or not she is acting as a lawyer or conducting the private affairs of everyday life."

  I think that this is a fact that some lawyers forget, that when they are acting in a courtroom perhaps they are more cautious about the things that they say and the representations that they make. But really the way that the bar looks at it, and this is the bar of every jurisdiction, is that when you are making statements and you happen to be a member of the bar, you happen to be a lawyer, that you will be held to account for those statements if it turns out that they are dishonest, fraudulent, deceitful, or knowing misrepresentations.

  So one of the things that Giuliani attempted to do in responding to the bar complaint was to say that he was a private citizen when he was acting. So in the context of the bar complaint, he had submitted court filings. So he was clearly acting as a lawyer. But as part of the OIG investigation ... And let me just give a little bit of context about what that OIG investigation was about. The 2018 interview was part of the OIG's investigation into whether FBI agents had tipped off Giuliani that then FBI director James Comey was about to reopen the investigation into Hilary Clinton, who was at the time the democratic presidential nominee.

  Two days before Comey announced his decision to reopen the investigation, Giuliani was on Fox News and he gave an interview where he said that Trump had a surprise or two that you're going to hear about in the next few days. "I'm talking about very big surprises." So that statement, in conjunction with a series of suggestions that Giuliani had previously made that FBI agents had revealed that they were outraged about the investigation, prompted an OIG investigation into whether agents had leaked confidential information to Giuliani. The idea was that Giuliani had been saying on TV that there was a surprise that was going to be revealed. And he had been quoted and had appeared on television saying that FBI agents had told them that they were outraged about the investigation.

  So the Office of Inspector General is charged with following up to see had FBI agents in fact leaked information to Giuliani. The special agent starts the interview by showing Giuliani a clip in which Giuliani is on Fox News and discussing the big surprise that will help Trump win the election. During the OIG interview, Giuliani denied having any inside information about Comey's announcement. And he said that when he said there was going to be a surprise, what he was referring to was the campaign's plan to purchase additional airtime for Trump to give a series of speeches.

  The agent then showed Giuliani a clip from a November 2nd, 2016 interview that Giuliani had with Megyn Kelly and Giuliani had said that outraged FBI agents had talked to him. When asked by the special agent from the Office of Inspector General what he meant, Giuliani said, "Actually no on-duty FBI agents had actually spoken to him," and that the information he received was part of the gossip mill. "Somebody may have even speculated on a newspaper."

  So one of the questions that comes up here is when you're making the statement, are you making it on behalf of your client or are you simply making it as a private citizen who happens to be a lawyer? And what we learned from the rules is that it doesn't matter. It matters in the context of which rule is at play. But 8.4 is at play regardless of whether or not you're representing a client at all.

  So let me talk a little bit about the Doug Gansler case. So that's an example of clearly representing a client and making a statement to the press. So in 2003, the Maryland Court of Appeals censured Doug Gansler, who was, at the time, the Montgomery County state's attorney. And they accused him of violating Rule 3.6 by making out of court statements before a trial. And I'll remind you that that rule states that a lawyer is not permitted to make out of court statements prior to a trial. The fear is that you will prejudice the jury.

  At the time that Gansler was censured, it was the first time that a sitting prosecutor in Maryland had ever been publicly censured. And the Court of Appeals unanimously ruled that Gansler had improperly and repeatedly discussed evidence, including a defendant's confession, at a news conference. So this is obviously a different circumstance than the Giuliani circumstance because the fear here is that a jury is going to be prejudiced when the acting prosecutor comes out and makes out of court statements. But the overarching message is really what you say to the press is something that you need to be responsible for and should be very cautious about what you say.

  So the next lesson here is that it's really important not to let the client dictate your strategy. So ABA model Rule 1.2(a) requires that a lawyer abide by a client's decisions concerning the objectives of representation, but that clients are to normally defer to their attorney with respect to the means to be used to accomplish their objectives.

  So what that means, taking a step back, because a lot of times the question becomes, well how do I zealously advocate for my client if my client is telling me to do something and I have reservations about doing it, is it my responsibility to do what my client wants? And the answer is that the client can have the overarching objective and dictates what that is. That's the appropriate dynamic in an attorney/client relationship. But it's really the lawyer's responsibility to decide how to go about achieving those objectives and doing so within the confines of the rules, because the lawyer is responsible for following the rules of professional conduct and can be sanctioned for not doing that.

  So ABA Rule 3.3(a)(3) allows a lawyer to refuse to offer evidence that the lawyer reasonably believes is false, regardless of whether or not the client wants you to do it, even if the lawyer doesn't know that the evidence is false. That's an important piece to keep in mind, that if you reasonably believe a piece of evidence is false, you can refuse to offer it, even though your client is saying, "It's true. I want you to say it. It's an important piece of evidence for my case."

  There is a very important distinction here to be made though. There's a very important exception, which is when a lawyer's criminal defendant client wants to offer evidence or testimony in particular, that the lawyer reasonably believes but does not know is false, that's a separate issue. And comment nine addresses it and says, "This rule does not permit a lawyer to refuse to offer the testimony of such a client where the lawyer reasonably believes but does not know that the testimony will be false. Unless the lawyer knows the testimony will be false, the lawyer must honor the client's decision to testify."

  And that exception is extremely important in the criminal context, because when you're representing a criminal defendant you want to honor that criminal defendant's right to testify in court. So absent knowing that what the client is going to say is not truthful, you have to allow your client to testify. In every other context though, you have a lot more flexibility in terms of what evidence you offer. And courts will look to you to make sure that the evidence that you're offering is accurate and based on due diligence.

  What comment nine explains is that an essential aspect of a lawyer's effectiveness as an advocate is his or her ability to discriminate in the quality of evidence. So this is what the court in the various sanction cases has been getting at, which is as a lawyer it is your job to be able to have confidence in the evidence that you're giving to the court, to know that you've looked into it. You cannot say things in affidavits based on no inquiry into the manner. You have to have a good faith basis for believing the things that you say, both inside the courtroom and outside the courtroom.

  Rule 1.2(d) also affirmatively bars a lawyer from assisting a client in committing fraudulent conduct. So that's the clearer cut case. Of course, we know lawyer cannot be in a position to help a client commit fraud. But what 1.2 shows us and what 8.4 shows us, and 3.3, and 4.1, is that there is gray area that you need to be mindful of. And you need to be careful that when you make statements, that you are not engaging in dishonesty and fraudulent conduct, shy of actually helping a client commit fraud.

  So while the client determines the goal of a representation, and so in this instance here Trump is Giuliani's client for at least part of the lawsuits and part of the time that's at play here with the sanctions. And so while the client determines the goal of the representation. So here, Trump's desire was to contest the election. An attorney must ensure that the means of achieving that goal are not dishonest, whether or not the client prefers a different approach.

  The Thornton Case, which is the D.C. case, stated that an attorney's duties towards the client must be met in conjunction with, rather than opposition to, other professional obligations. And as I was discussing earlier, it's not always easy to understand what the limits of advocacy and zealousness are. One of the principle things we think about and we're taught in law school and we are consciously aware of as lawyers is that our job is to zealously represent our clients. But it is very important to not let a client who is really demanding compromise your duties as a lawyer to be candid and forthright with the court, and also not say things to the press or in public that are not truthful, because you will be the one who is at risk of getting sanctioned.

  The next lesson here is about being honest about how you characterize the issues in your case. So one interesting aspect of the New York court's decision in issuing a temporary suspension for Giuliani was an exchange about whether Giuliani's complaint had alleged fraud. So I've included here a portion of the transcript.

  And the court says, "So is it correct to say then that you're not alleging fraud in the amended complaint?" To which Giuliani says, "No, your honor, it is not, because we incorporate by reference in 150 all of the allegations that precede it."

  And the court says, "So you are alleging fraud?" And the respondent, Giuliani, then responds and says, "Yes, Your Honor." And then the court seeks further clarification and says, "Does the amended complaint plead fraud with particularity?" To which Giuliani responds, "No, Your Honor. And it doesn't plead fraud. It pleads ... it pleads the plan or scheme that we lay out in 132 to 149 without characterizing it."

  So what the court ultimately found was that the amended complaint did not include a fraud claim. And the Appellate Division found that Giuliani's description that it did was false and misleading because it is considered false and misleading to misrepresent the status of a pending proceeding. So even though the complaint is before the court, the court can read the complaint for itself. Not accurately representing whether or not an allegation is contained in a complaint was considered by the Appellate Division in New York to be conduct that was false and misleading.

  What some lawyers might think of when they think of this is we are often called upon to make arguments that case law supports our client's position, for example. Or that the way that you should interpret a document is X instead of Y. The important thing to remember here is that as a lawyer you absolutely should make good faith arguments, even if they stretch, even if there is contrary evidence or if you think that certain authority is not as persuasive. But your obligations are to, of course not misrepresent the state of the case law, to not misrepresent facts that are at play, and that statements about the status of a proceeding or a pleading are governed by a lawyer's duty of candor in the same way that a statement that dead people voted, that's not accurate, is also governed by a lawyer's duty of candor.

  The other thing I'll note here is the role of reciprocal discipline. So a lawyer who is disciplined for misconduct in one state is subject to reciprocal discipline in every other jurisdiction in which he or she is admitted to practice. Most state level disciplinary authorities require lawyers to notify them if they've been disciplined in another jurisdiction.

  Every state operates a little bit differently with respect to reciprocal discipline, so I'll give an example. I'll use D.C. as an example. So in D.C., reciprocal discipline is quantified in section 11 of the District of Columbia's Court of Appeals rules governing the bar, which is quite a mouth full. But it is the rules that the District of Columbia's Court of Appeals sets forth to establish how lawyers are governed within the bar. And it states that it's the duty of disciplinary council, who is the person who is charged with investigating and making charges for violations of the rules of professional conduct, that disciplinary council has to get copies of orders of discipline from other disciplining jurisdictions, and that upon learning that an attorney is subject to discipline in D.C. has been disciplined in another court, disciplinary council is supposed to file that with the D.C. Court of Appeals.

  And that any attorney subject to discipline in D.C., i.e an attorney who is barred in D.C., upon being subjected to professional disciplinary action in another court, has to notify disciplinary council. So the same thing that operates in every state, which is that you have to notify disciplinary council that you have been subject to discipline. And then in D.C., as in every jurisdiction, there are specific rules about when reciprocal discipline applies.

  And in D.C., which is similar to most jurisdictions, it can be imposed on an attorney whose been disbarred or suspended or placed on probation by another disciplinary court. And that once a certified copy of the disciplinary proceeding is obtained by the court, the D.C. Court of Appeals sets forth an order that basically says either that the attorney who has been disciplined in the other jurisdiction will be suspended, pending the final resolution in the other jurisdiction. And also directing that the lawyer show cause why identical reciprocal discipline should not be imposed, why it should not be the case that in D.C. you get the same exact discipline that you've received in the other jurisdiction.

  And the reason that I'm discussing reciprocal discipline here is that Giuliani was two weeks after the New York suspended Giuliani, or temporarily suspended Giuliani from the practice of law, the D.C. Court of Appeals also barred Giuliani from practicing law. In rendering its judgment to temporarily suspend Giuliani from the practice of law in New York, the New York Committee of Judges held that Giuliani was unfit to keep practicing law, and that his conduct warranted a temporary suspension after he, "Communicated demonstrably false and misleading statements to the court, law makers, and the public at large."

  And it was the conduct that he engaged in while representing former president Donald Trump and the Trump campaign, in connection with their efforts to overturn the results of the 2020 election. After that decision, the disciplinary council in D.C. recommended suspending Giuliani's license in D.C. until the New York Case was resolved. That is a not unusual posture for disciplinary council to be in, in all jurisdictions, to recommend identical reciprocal discipline and for that discipline to be in place while the original jurisdiction is rendering its final decision.

  After disciplinary council made that recommendation, the procedure that we walked about, in D.C., is that the D.C. Court of Appeals reviews. And in this instance the D.C. Court of Appeals agreed and held that Giuliani's D.C. bar license should be temporarily suspended until the New York case resolved. Interestingly, Giuliani's D.C. license is inactive. He was on inactive status. And so to be able to appear in a D.C. court, he would have had to apply for an application to appear, on a temporary basis. And if you are temporarily suspended, you cannot apply to appear in front of a D.C. court. So during the time that the New York decision is being finalized he cannot practice in New York or in D.C.

  And it's important to note that neither decision is final. But disciplinary proceedings can last for a very long time. We see them last for years. That's not actually all that uncommon, for them to last for years. And they can ultimately lead to sanctions that include disbarment. And more severe sanctions are also sought in some reciprocal disciplinary cases. But jurisdictions disagree on their permissibility. So some jurisdictions will allow the reciprocal state, so the state where the conduct did not initially occur, to discipline an attorney in a more severe way than the original jurisdiction that is issuing discipline.

  So a couple of cases on this point. The Utah Supreme Court held that lawyer discipline rules in Utah do not allow for stricter reciprocal discipline. So if you are subject to reciprocal discipline in Utah for conduct that was done, for example, in New York, the sanction in Utah cannot be more severe than the sanction that you received in New York. And this is the Welker case that came out in 2004 in Utah. The District of Columbia Court of Appeals, which hears a lot of reciprocal discipline cases because many lawyers are licensed to practice in an original jurisdiction and then also get admitted to practice in D.C., based on the nature of their work. So the D.C. Court of Appeals has actually taken a different approach to Utah. And it has held that the District of Columbia's bar office of bar council has standing to object to identical discipline, and is allowed to recommend a different sanction when it believes an exception applies.

  The D.C. Court of Appeals has held that such instances should be rare. And the court has added that absent proof of an exception, there's a strong presumption toward identical discipline. So whatever discipline you received in New York, for example, the presumption should be that you receive the same discipline in D.C.

  And the D.C. Court of Appeals has laid out a two-step process for determining if different sanctions are warranted. The first step in that process is whether the misconduct in question would have resulted in the same punishment if the District of Columbia had been the original disciplinary jurisdiction, i.e. if the conduct had occurred in D.C., based on a D.C. representation, would the misconduct have resulted in the same punishment. Would D.C. have imposed the same punishment as the disciplinary jurisdiction? And the second step is whether the sanction would have been substantially different if the District of Columbia had disciplined the lawyer first.

  So there's two pieces here, which is what does D.C. have as the punishment for the violation that the lawyer has been accused of. And what sanction would accompany that violation. So I'll share an interesting anecdote, especially in light of the fact that we're doing a CLE here, based on reciprocal discipline. So this is a 2014 case that involved a lawyer who was barred in D.C. and also Virginia. And in 2014 there was a lawyer who went to a CLE seminar in Virginia. This is a quote from the disciplinary proceeding. "During the morning session the lawyer fell asleep and began snoring, causing the seminar's coordinator to intervene and wake him."

  So things apparently went from bad to worse for this lawyer who fell asleep in the middle of this CLE. The lawyer then began talking loudly at a video presentation, and continued to do that after the seminar coordinator asked him to stop. In response to the lawyer's outbursts, another attendee at the CLE led the lawyer out of the room. That attendee smelled alcohol on the lawyer who had fallen asleep and then caused a series of outbursts. And the lawyer admitted that he had been drinking. So there was a Virginia state bar inquiry in which the lawyer at first denied everything. He denied that he was intoxicated. He denied that he fell asleep. And he denied that he was snoring.

  Unfortunately that denial started the snowball, because the lawyer had to admit that those representations were in fact not accurate, and that he did not take the steps necessary to correct his misrepresentations. The lawyer and the Virginia state disciplinary board stipulated that the lawyer had violated the Virginia rules of professional conduct, in particular rule 8.1(b), which makes it misconduct to fail to disclose a fact necessary to correct a misapprehension known by a lawyer to have arisen in connection with a bar discipline matter.

  So there is a separate obligation for lawyers that when you are involved in a discipline matter that you have to tell the truth. And if you have been dishonest or if you have failed to disclose a fact, it is your obligation to correct any misapprehension that the disciplinary authority might have. So the penalty in Virginia is a six month suspension for a violation of 8.1. That's the presumptive suspension. But because the lawyer was barred in D.C., in the same way that Giuliani has a New York license and a D.C. license, he had to contend with the D.C. rules. And as I mentioned, the D.C. rules presumptively impose identical reciprocal discipline, unless the attorney demonstrates by clear and convincing evidence that there's some exception. There's also the opportunity for bar council to identify, by clear and convincing evidence, that there should be some exception.

  So in this case, the lawyer argued that his Virginia suspension was based on sleeping and snoring in his CLE class. He said, "That's the reason I got suspended from D.C." And that he was disciplined in Virginia for conduct that does not constitute misconduct in D.C. It's not a violation of the D.C. rules to fall asleep in a CLE that you are taking in Virginia. Unfortunately for the lawyer, the D.C. Court of Appeals did not agree with that reasoning, and held that the discipline was not because the lawyer fell asleep and was snoring and causing a series of outbursts at the Virginia CLE. It was because he lied to the Virginia state bar about whether or not he was intoxicated and the fact that he had fallen asleep, and the fact that he had caused outbursts. And those are ethical violations under the D.C. rules, because you cannot lie to disciplinary authorities in D.C. in the same way that you can't in Virginia.

  So I think the lesson here is many lawyers are barred in multiple jurisdictions, they're admitted in multiple jurisdictions. It's very important to consider what the ramifications are of the conduct that you are involved in, in your original jurisdiction, and what that means for sanctions in reciprocal states. And the clear takeaway is, do not let the coverup be worse than the crime. If you are faced with disciplinary authority, it is your job to be candid, just as though it's your job to be candid in front of a court and it's your job not to fail to correct material misrepresentations made to the press.

  So the last lesson that I will touch on here is that it's really important for junior lawyers not to rely on the fact that they are the junior lawyer on the case if the senior lawyer is making a material misrepresentation in court. There have been nine lawyers, I believe, so far that were associated with various cases that claimed that the 2020 election was stolen, and nine lawyers have been sanctioned so far. All of those lawyers, to my knowledge, have been lawyers whose names were on the various briefs and who appeared in court.

  It is important to know that there are circumstances where being a part of a case, you will be held responsible for what other people who are also part of that representation say. So Daniels is really the cautionary tale here for in particular an associate who seeks comfort in the fact that he was not the one to say the false statement in court, it was the partner who was the one to say the false statement. So the facts of Daniels are, Daniels was a law firm associate. He was a junior associate. And along with a partner at his firm he represented a mother in a child custody matter. The court held that the associate had breached his duty of candor to the court because during an ex parte hearing the associate had failed to correct something that the partner had said, that the associate knew was both untrue and vital to the case.

  And the associate defended himself and said, "But I didn't say the false statement. That wasn't me. That was the partner on the case who spoke the falsehood." And the court rejected that defense and said that a lawyer can be guilty of a 3.3(a)(1) violation. And the court held, "Depending upon the circumstances the rule can pertain to an attorney who fails to correct a misstatement to the court that was made in his presence by another attorney."

  So the lesson here is that it is very important to be cognizant of representations that are made, both the representations that you make yourself, but also by those on your team. And that failing to correct a materially false statement is a violation of the rules. And one distinction to note, which we discussed when we talked about 3.3 and 4.1 is there are two categories. There's you cannot say a false statement in the first instance. But your duty to correct is your duty to correct a materially false statement if it's made in court. And then there's also the independent 8.4 duty which is that a lawyer cannot, in any context, engage in conduct that involves dishonesty and deceit.

  So I will end here. I'll note that my contact information is on the final slide that I believe you all have access to. And my email is [email protected], G-E-R-Z-H-O-Y. So please feel free to reach out to me if you have any questions or comments. And I will also add that one of the things that I do is I sit on the D.C. bar rules of professional conduct review committee, which reviews the rules of professional conduct. And so in that context we are constantly in the process of evaluating the rules and seeing whether or not they serve lawyers and they serve the public at large. So please feel free to reach out to me. And I hope you enjoyed the presentation.

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On demand
1h 1m 47s

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