Should Rudy Giuliani Be Disbarred?
Thomas Bertron | June 2021
(Left to right) Courtroom in Wayne County, IN; Rudy Giuliani speaking in 2016
n February 2021, Rudy Giuliani was sued by Dominion Voting Systems for defamation. The lawsuit stems from the fact that Giuliani accused the company of switching votes that he claimed former President Donald Trump had earned in his 2020 presidential race against Joe Biden.
Due to the repeated allegations of voter fraud made by Trump and Giuliani, without evidence, there have been calls made for Giuliani to lose his license to practice law. Whether this occurs or not, there have been other instances in American history where a lawyer has been disbarred under similar circumstances.
Rule 4.1 of the American Bar Association (ABA), titled “Truthfulness in Statements to Others,” states that “In the course of representing a client a lawyer shall not knowingly… make a false statement of material fact or law.” In addition, the ABA’s Rule 8.4(c) labels as “professional misconduct” the act of engaging “in conduct involving dishonesty, fraud, deceit, or misrepresentation.” If lawyers make false or drastically misleading statements, they are prohibiting a court from dispensing justice in an accurate manner. Before, during, and after Trump lost to Biden on election day, he and his allies engaged in a campaign of falsehoods, the goal being to cast doubt upon the legitimacy of Biden’s victory.
Now Giuliani could have decided not to engage in this kind of misleading, unsubstantiated dialogue; he could have made the ethical decision to accept his client’s defeat in order to uphold the rule of law and our democracy’s legitimacy, despite possessing internal skepticism towards the election results. Instead, the campaign of falsehoods appeared to culminate with the January 6th storming of the capitol.
Before this occurred, however, Giuliani spoke at the “Save America Rally.” He continued his attack against widespread election fraud, which has never been proven, stating, “Over the next 10 days, we got to see the machines that are crooked, the ballots that are fraudulent … if we’re right, a lot of them [Democrats and their allies] will go to jail. Let’s have trial by combat.” While he later claimed his comments stemmed from a scene in the television show Game of Thrones, it does not exclude the fact that he made a speech advocating for violence based on a claim made of lies.
Looking to State-Level Precedent
The answer to the question of whether Giuliani should be disbarred, while difficult to determine, might be predicted based on precedent derived from similar situations.
In Texas, a lawyer was disbarred after partaking in similar actions to those taken by Giuliani. He was additionally allowed to practice law in Georgia, after which he was disbarred on April 19, 2021. Specifically, in 2015 attorney Majd M. Ghanayem was hired by a client in Texas in order to file a request that the father of her son no longer have parental rights. However, he failed to do so until March of 2017. He proceeded to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation by misrepresenting the status of the matter to his client and by providing her with a fraudulent order and forged signature of a judge.”
Ghanayem's actions ended in disbarment. While Giuliani is not licensed to practice law in these Texas or Georgia, it is interesting to note that state laws of professional conduct are generally uniform, so disbarment would be likely for him if he were licensed in these states.
Another case in Georgia saw the disbarment of lawyer Mitch Skandalakis. On Monday, November 7, 2005, the Supreme Court of Georgia stated Skandalakis “pleaded guilty in U.S. District Court in Atlanta to one felony count of making a false statement to an FBI agent who was investigating corruption in Fulton County government… the court found that [he] ‘knowingly and willfully lied’ in an attempt to avoid being held accountable for a breach of public trust.”
While this is a bit of a different scenario than one in which Giuliani finds himself, the two boil down to the same question: whether or not a lawyer knew what was said was false. There is evidence to suggest that Giuliani knew what he was saying with regard to the election was false, but he did it anyway.
Yet despite this precedent in Texas and Georgia, several ethics experts claim that disciplinary authorities are unlikely to take legal action against lawyers for the Trump campaign, particularly out of a reluctance to “police” attorney speech and the desire to avoid appearing partisan.
Another factor that might alter the chances of Giuliani’s disbarment is the fact that such action is taken by state bar associations, not an overarching organization such as the ABA, leading to potentially varying grounds for disbarment across state lines. Nonetheless, precedent is still precedent with regard to state-level disbarment, and Giuliani, a member of the New York State Bar, is still vulnerable to the potential for removal from the legal profession.
Matthew Frederick, in collaboration with California-based attorney Vibeke Norgaard Martin, wrote a book titled 101 Things I Learned in Law School. A passage in the book presents the difference between truth and honesty; “Honesty and truthfulness are not the same thing. Being honest means not telling lies. Being truthful means actively making known all the full truth of a matter. Lawyers must be honest, but they do not have to be truthful … Counsel may not deliberately mislead the court, but has no obligation to tell the defendant’s whole story.”
While there is documentation of Giuliani’s statements and his interpretations of those statements, this is still not a closed case. As indicated, there is precedent that he can be disbarred for making the aforementioned misleading statements. However, until a potential case goes to trial, it will not be known if Rudy Giuliani will be officially disbarred from practicing law in a United States courtroom.