June 24th, 2021

Giuliani Suspended from Practicing Law

Rudy Giuliani

Racing around the interwebs today is the fact that New York has suspended Rudy Giuliani from practicing law. It’s an interim suspension — he hasn’t had a hearing yet. That is a tough thing to get in New York, but it happened for two reasons: The “uncontroverted claims of professional misconduct” and his “conduct immediately threatens the public interest.”

The fundamental issues regarding the claims of misconduct deal with his assertions of voter fraud in Pennsylvania, Georgia and Arizona. Over and over again he screamed fraud. The Appellate Division (First Department) wrote that Giuliani “communicated demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer for former President Donald J. Trump and the Trump campaign in connection with Trump’s failed effort at reelection in 2020.”

The problem, of course, is that when lawyers make statements of fact in their capacity as a lawyer (not in their capacity as the Tooth Fairy or April Fool’s hoakxster) we are expected to have evidence to support our statements.

For the vast majority of people, lying about the election might well be protected First Amendment speech (unless with pitchforks and torches inland, storming the castle Capitol is urged. But that’s for another day.)

But the First Amendment doesn’t apply the same way if you are handed the privilege of representing people in court. You get something but there is a price for it. We are not free to lie to a court. The Court here wrote:

“It is long recognized that “speech by an attorney is subject to greater regulation than speech by others”. Unlike lay persons, an attorney is “a professional trained in the art of persuasion” . As officers of the court, attorneys are “an intimate and trusted and essential part of the machinery of justice”. In other words, they are perceived by the public to be in a position of knowledge, and therefore, “a crucial source of information and opinion.”

So while the lawyer hat is on, we play by different rules. We still have our First Amendment rights to spew nonsense if we like, just not while wearing that particular chapeau.

The Court then launches into a dizzying and well-documented array of particulars regarding his conduct in Pennsylvania, Georgia and Arizona. It’s a helluva list that includes his conduct at Four Seasons Total Landscaping, boxer Joe Frazier, claims of dead people voting, boxes or suitcases of ballots under desks and thousands of undocumented voters.

The Court painstakingly discusses how each was utterly and completely unsupported by evidence. One example of many is claiming that Pennsylvania mailed out 1.82M absentee ballots but that 2.59M were counted. This was false. In fact, 3.08M had been set out.

But being wrong is one thing. Repeating it after learning you were wrong is a different story. The Court wrote: “Notwithstanding the true facts, respondent repeatedly advanced false statements that there were 600,000 to 700,000 fabricated mail-in ballots, which were never sent to voters in advance of the election.”

The Court then proceeds to document numerous times he made the false statements after learning they were false. And continued making false claims even after the Attorney Grievance Committee brought this motion against him!

The Court went on to document his false claims that tens of thousands of dead people voted in Philadelphia.

In Georgia, Giuliani claimed to have “hundreds of pages of affidavits and declarations …that document gross irregularities…” including tens of thousands of underage voters. He produced nothing. Nada. Bupkus.

And in Arizona he made utterly unsubstantiated comments that tens of thousands of undocumented people had voted, despite the fact that “no statewide check on undocumented noncitizens had been performed.”

While the hearing hasn’t been held, Giuliani did have an opportunity to be heard on the interim suspension. There was a motion and he failed to come up with the goods. Likely because he doesn’t have them.

While many will write stories about this event it is the evidence part that really jumped off the page. Lawyers are supposed to have it when making claims. Giuliani claimed he had it. But he couldn’t produce it. And he did it with his lawyer hat on.

The second part of the decision deals with conduct threatening the public interest, because lying alone isn’t generally likely to lead to a suspension before a hearing (though the courts are pretty damn sensitive when it comes to client funds). One of the standards a court may use is “conduct immediately threatening the public interest.” (22 NYCRR 1240.9[a])

At this point the Court gets to the heart of the matter, that Giuliani was using his lawyer’s fedora to undermine both the practice of law and faith in the legal profession, and democracy itself, with his lies. And that includes the January 6 insurrection :

The hallmark of our democracy is predicated on free and fair elections. False statements intended to foment a loss of confidence in our elections and resulting loss of confidence in government generally damage the proper functioning of a free society. When those false statements are made by an attorney, it also erodes the public’s confidence in the integrity of attorneys admitted to our bar and damages the profession’s role as a crucial source of reliable information (Matter of Nearing, 16 AD2d at 516). It tarnishes the reputation of the entire legal profession and its mandate to act as a trusted and essential part of the machinery of justice (Ohralik v Ohio State Bar Assn, 436 US at 447). Where, as here, the false statements are being made by respondent, acting with the authority of being an attorney, and using his large megaphone, the harm is magnified. One only has to look at the ongoing present public discord over the 2020 election, which erupted into violence, insurrection and death on January 6, 2021 at the U.S. Capitol, to understand the extent of the damage that can be done when the public is misled by false information about the elections. The AGC contends that respondent’s misconduct directly inflamed tensions that bubbled over into the events of January 6, 2021 in this nation’s Capitol. Respondent’s response is that no causal nexus can be shown between his conduct and those events. We need not decide any issue of “causal nexus” to understand that the falsehoods themselves cause harm. This event only emphasizes the larger point that the broad dissemination of false statements, casting doubt on the legitimacy of thousands of validly cast votes, is corrosive to the public’s trust in our most important democratic institutions.

The misrepresentations are so well documented that I am guessing that he will end out with a real suspension after a hearing, or disbarment. He will get another shot to defend, he will have competent counsel, but this will be an uphill battle for him. If he had evidence that he was merely mistaken, and not fabricating crap, he would have laid that on the table.

A final note, and I can’t help but think that this was a significant factor in deciding to suspend before a hearing: Giuliani claimed in his response that he is not a threat “because he has and will continue to exercise personal discipline to forbear from discussing these matters in public anymore. He also claims that because legal matters following the 2020 election have concluded, he will no longer be making any statements about the election under the authority of being an attorney.”

And yet, the Court found that, “Notwithstanding respondent’s claim that he has exercised self-restraint by not publicly commenting on the election, there are numerous instances demonstrating the opposite.”

The Court found, “We cannot rely on respondent’s representations that he will exercise restraint while these proceedings are pending.”

If there’s one thing a Grievance Committee really, really hates, it’s when lawyers lie to them.

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February 14th, 2018

Trump’s Lawyer, the Porn Actress, the 130G Payoff and Attorney Ethics

Stephanie Clifford (aka Stormy Daniels)

Yesterday news broke that longtime Donald Trump attorney, Michael D. Cohen, was responsible for paying $130,000 to porn actress Stephanie Clifford (aka Stormy Daniels) on behalf of Trump in 2016, before the election.

“In a private transaction in 2016, I used my own personal funds to facilitate a payment of $130,000 to Ms. Stephanie Clifford,” Michael Cohen said in a statement. “Neither the Trump Organization nor the Trump campaign was a party to the transaction with Ms. Clifford, and neither reimbursed me for the payment, either directly or indirectly.”

When the underlying stories of they payoff started in January, many folks immediately started looking to see if such a payment violated campaign finance laws. And indeed, that is what most of his statement addressed yesterday.

But I’m looking at the New York Rules of Professional Conduct. Those of us in the personal injury bar know, for example, that advancing funds to clients is a big fat no-no. Does the same provision apply here?

The relevant rule reads as follows:

RULE 1.8:

CURRENT CLIENTS:
SPECIFIC CONFLICT OF INTEREST RULES

(e) While representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to the client…

OK, you see that ellipses and you want to know what comes after, right? There are three exceptions, each of which invite an investigation to see if they apply:

(1) the transaction is fair and reasonable to the client and the terms of the transaction are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;

(2) the client is advised in writing of the desirability of seeking, and is given a reasonable opportunity to seek, the advice of independent legal counsel on the transaction; and

(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.

The full statement is below and you can decide for yourself if you think it looks like an advance or guarantee of financial assistance (not because Trump needs it, but to hide it). (Edit: Whether there was litigation involved — matrimonial or contract? — is impossible for us to know from here.) Another problem may be that, from Trump’s perspective, this isn’t a transaction if he claims not to be repaying the money.

At the very least, it seems that Cohen has invited an investigation from the Disciplinary Committee. I’ve long said that Trump is a one-man bar exam with never-ending legal issues unlike any other person. That pattern continues today.

The statement:


 

 

November 17th, 2016

10 Years of Blogging (A Retrospective, Part 1 of 2)

ny-personal-injury-law-mastheadI started this blog 10 years ago today, absolutely clueless about what I would do with it.  I just liked to write and figured this would be a good arena to take oft-times complex subjects and break them down to their easy components. (The Purpose of the New York Personal Injury Law Blog)

After putting up that first little post I remember telling my webmaster about the six hits I got from that post. I found readers so quickly! He told me they were Bulgarian spambots.

Since then I’ve appreciated something that I didn’t appreciate back then: That the practice of law, even in a small niche like mine, has an extraordinary breadth.  There was no real reason to limit myself to local judicial decisions, or trial practice and tips.

And so I have ranged far and wide into the subject of attorney marketing and ethics, Supreme Court nominees, tort “reform,” bar exams, confidentiality and privilege, insurance fraud by the insurance industry itself, and the First Amendment.

And I’ve written about running a few times, because it’s my blog and I get to make the rules.

Among the few rules that I actually try to follow:

  1. No personal attacks. There is a difference between tearing into someone’s argument and an ad hominem attack;
  2. No gratuitous coverage of local incidents where people are likely to hire lawyers due to injuries;
  3. No self-aggrandizement, or this blog would look like an advertisement, and worse yet, be dreadfully dull; and
  4. Try hard not to do “me too” posts that merely repeat the news/thoughts of others.

Along the way of writing 1,400+ posts, I’ve had over 2M+ page views, and have stumbled into the pages of the New York Times, Wall Street Journal and Washington Post, among many media outlets. The NYT ripped off one of my stories, and the WSJ figured out how to do so also.

I’ve written a few op-eds and appeared in editorials. I’ve done television interviews, given lectures, and appeared on the sides of busses in a NYC Marathon ad.

This humble little site has been viewed in the White House, Supreme Court, Justice Department and CIA, and been seen in 200+ nations, according to Google Analytics. I’ve been sued twice for defamation, and been threatened several other times.  The blog was part of the inaugural class of the Law Blog Hall of Fame run by the American Bar Association, along with just nine others.

In other words, it’s been a bit of an adventure. As I sit here typing, I can’t keep from humming along on what a long strange trip it’s been.

Today and tomorrow I’m going to reach back into the archives to link to some of my favorite posts. And when I say favorite, I don’t mean the ones that received the most number of hits. I mean the most fun to write, or ones that I thought important regardless of what others thought.

Because if you don’t enjoy the experience of writing (regardless of whether you do it well), or believe there is a point to what  you are doing, then you shouldn’t bother blogging. You’d be miserable, and worse yet, your words would suck. If you’re not inspired to write, it will be abundantly clear in the finished product.

And so, without further ado, Part 1 of some of the babies I enjoyed birthing:

Robert Bork Brings Trip/Fall Suit for Over $1M, Plus Punitive Damages And Legal Fees — This 1997 post hits my list because the suit was brought by a big white shoe firm, and the firm utterly screwed up the simple act of drafting a complaint. And they did so on behalf of a big shot judge for a suit destined to attract media attention. Lesson for laywers: Bigger law firm does not mean better, and if you don’t know what you’re doing, ask.

Doctor “Flea” Settles Malpractice Suit After Blog Exposed In Court — Nine years ago a medical blogger decided to live-blog his own malpractice trial, and it was painful on many levels. His posts and the lawsuit attracted very wide attention at the time in the legal and medical blogosphere, and ultimately landed on the front page of the Boston Globe. Lesson: Don’t write anything you’re afraid to see on the front page of the paper.

Who Sits Jury Duty (The Turkewitz Beer Test) — Jury selection is an art. Since I’m not a great artist, this is the way I do it. Your mileage may vary.The Bubbe Maisse Report (aka “Judicial Hellholes”) – Every year the tort “reformers” come out with a “report” to declare judicial hellholes. The problem? It’s merely a collection of favored anecdotes. Does the press care? What do you think?

Supreme Court Grants Cert in “Fantasy Baseball” Case; Three Justices Recuse Themselves Due To Participation in High Court League — I had the idea to write this 2008 post about a month in advance of April 1st, then kept adding to it. And adding. And adding.  I loved writing it, and hoodwinked a few folks. And the premise is still good regarding the circumstances by which SCOTUS judges should recuse themselves.

It was 20 Years Ago Today — Lessons from an around-the-world backpacking trip I took in 1988-89.

Hudson River Plane Crash To Test New York’s New Attorney Ethics Rules? — I had a problem when New York amended its attorney anti-solicitiation rules: How do I write about those rules in practice after a calamity, without it looking like its a covert way of using this blog to solicit? This Miracle on the Hudson splash landing by Captain Sully solved that problem for me, and I’ve been writing on ethics, advertising, marketing and solicitation ever since. The splash landing also had a few other benefits.

As Seen On Oprah! (Kinda, Sorta, Almost) — Back in 2009 Oprah wanted some x-ray images that I have for a piece on medical errors by Dr. Oz.  Her staff proved to me that Oprah succeeded despite them. I just enjoyed writing this, OK? Do I really need another reason? (Side note, Diane Sawyer had no problem striking a deal with me a few years later.)

Your Bar Exam Answer Sheet Is Gone — Now What? — This fun little post about the time my bar exam results vanished keeps getting hit, as bar examiners invent new ways to give test takers a little extra shot of anxiety.  Good preparation for life, I say. And it spawned a series of subsequent posts on bar exam horror stories. If you has the misfortune to stumble on this while prepping for the test, you’re welcome.

The SCOTUS Nominee and the Tissue Box Test -– Supreme Court nominations are always important (too important), and this is my gripe on the lack of judges with real world experience dealing with individual clients.

Did Sotomayor Violate NY Ethics Rules in Private Solo Practice with “& Associates” Name? — A post that the Times ripped off a month later, without attribution, and forced a response from the White House.

turkewitzturkeysuit

Do I look lawyerly?

Five Years of Blogging (And Happy Thanksgiving) — A little explanation as to why I do what I do, given on the 5th anniversary of this blog. While in a turkey suit. And since that particular day happens to be on the immediate radar, I think it’s time to dig that suit out of the basement.

Blawg Review #134 (NYC Marathon Edition) – Back in the day, Blawg Review was a thing, a weekly round-up of the best that the legal blogosphere had to offer. So I was delighted that so many bloggers elected to tell me what they were writing about that week while we ran the NYC Marathon. Oddly enough, I was able to coerce more bloggers to come to my house to meet Arlo Guthrie at Thanksgiving, and got The Bogeyman to come with me to the homes of bloggers on Halloween, in a couple of subsequent Blawg Reviews.

Tomorrow, some more posts as I continue to naval gaze at my little creation.

 

August 2nd, 2016

Trump and Lawyers and Privilege, oh my! (Updated)

wells

Thomas M. Wells, photo from his law firm website

I’ve said before that Donald Trump is a one-man bar exam, as his candidacy seems to touch on roughly six bazillion different issues. One could easily create a law blog devoted solely to the legal issues he is involved with that come up on a daily basis — from matrimonial, to contracts, to fraud, to defamation, to torture and war crimes and more.

But today, just for kicks, I’ll tell you how he may have been inappropriately slimed.  Beating up on Trump, you see, is easy pickings. But defending him from inappropriate conduct? You be the judge.

We turn, now to one of his former lawyers, and since Trump has been involved in 3,500 lawsuits, in addition to godknowshowmany banking and licensing deals, there are many of them around.

This one is about Thomas M. Wells, who was hired  by Trump for a New Jersey real estate deal regarding a mall.

On July 31st, he published a nice, juicy article in the Huffington Post with this headline:

Donald Trump Hired Me As An Attorney. Please Don’t Support Him For President.

Wah? Inside scoop?  Let’s read!

This was the basic background where Wells establishes his credentials to write with authority:

In 1987, when I was 35 years old and he was 41, Donald Trump hired me to be his attorney on a major northern New Jersey project, a shopping center, which like everything else, was to bear his name, Trump Centre. It was a big deal that he picked me and a high honor for me just a couple of years after I started my law firm, which is now over 30 years old. This was at a time when Trump still built things, having recently finished Trump Tower.

OK, he was one of the lawyers. But what kind of information can he possibly spill if he was Trump’s lawyer? There is, after all, the subject of client-attorney privilege.

Well, off the bat, Wells gets right to it, giving personal stories to lede into the rest of the piece. (The rest of the piece appears to be based on public information.)

First, there is this bit about bad deals, which is odd since Wells was helping him with a deal:

He seemed to me smart, business savvy, decisive. He had a very impressive office, a fancy and very big boat, an airline, a helicopter shuttle and several casinos. Within a few years, virtually all of this would be lost because of bad business decisions.

Second is this piece about Trump claiming that women wanted him:

After the initial interview, my client contact with Donald was actually not very much. One low point I do remember (actually will never forget) is a limousine ride to a meeting with the editorial board of a New Jersey newspaper in which my married client sought to regale me with the number and quality of eligible young women who in his words “want me.” I was just plain shocked and embarrassed, but I kept smiling. I wanted and needed this client happy.

And third, Wells takes on Trump’s well-known braggadocio and lust for publicity in discussing the size of his apartment and the varying press stories on just how big it is:

While I was working for Donald, various press reports had Trump and his then-wife Ivanna living in a personal apartment in the Trump Tower of 8, 16 and even 20 or 30 rooms. Genuinely curious, I once asked him how many rooms the apartment actually had. I will never forget his response to me: “However many they will print.”

Zing! The story confirms your bias against Trump, leaving you wanting to read the rest of the piece for any other juicy tidbits.

But, but, but.

Were those three pieces fair game for an attorney to discuss? Clients, after all, share all kinds of information about themselves. Lawyers often need to know what they are, so that we can represent them the best. Sometimes the information is useful, sometimes it’s garbage.

Wells is licensed in New Jersey, and that state’s Disciplinary Rules of Professional Conduct would control. In this case, it would be section 1.6 relating to confidential information. With few exceptions,  “A lawyer shall not reveal information relating to representation of a client…”

Did any of these three stories relate to his representation? I think it goes against Wells. The comments were made in the course of a client meeting. The client may reasonably expect the such communications would be privileged — even if it is Donald Trump.

I’ve written before about lawyers that want to capitalize on being associated with those in the public eye, such as Lindsay Lohan, or as part of puff pieces. This stuff is almost always verboten.

It seems to be that if an individual can’t keep a secret, then representing clients may not be the right line of work.

I’ve reached out to Wells for comment and he gave this initial response:

The only references made were to conversations approximately 30 years ago, not on business or legal matters and no legal advice was sought or given in same.

There is, of course, no part of the client-attorney privilege that simply expires based on the passage of years. There is no statute of limitations with regard to confidentiality.

As to whether the information must be strictly related to “business or legal matters” or “legal advice,” that is not an easy line to draw. Clients talk, in confidence. And they deserve to know that the confidences will be kept.

Even if a client hires a lawyer to do a closing, and then volunteers in private that she killed someone 20 years ago, or that she cheated on her husband with a few dozen others, I don’t think it means the lawyer gets to blab the stories later. The stories may not be related to the subject for which the lawyer was hired, but were still uttered within the quiet bubble representation.

If you think I’m wrong, have at it in the comments.

Update: Mr. Wells gave me a further comment by email:

 this conversation did not deal with a legal or business matter and no legal advice was sought or given.  There are other issues in this instance as to who the actual client was, who was present etc. but that could be argued to be confidential so I will not go there.

 

May 26th, 2016

Hulk Hogan’s Ambulance Chaser

Terry Bollea, aka Hulk Hogan, takes the oath in court during his trial, via Reuters

Terry Bollea, aka Hulk Hogan, takes the oath in court during his trial, via Reuters

The story of ambulance chasing after the Hulk Hogan case is buried 22 paragraphs into the New York Times article. But that is where I am going today.

As many of you know, Terry Bollea (a/k/a Hulk Hogan), sued Gawker over the release of a sex tape that was made with the wife of his (former) good friend. The jury came back with a whopping $140M verdict.

There were two pieces of news on the case: First, the trial judge didn’t reduce the damages. Nor was the case tossed out on First Amendment grounds. Both of those issues, for sure, will be on appeal, though Gawker must post a $50M bond to get there, which may bankrupt the website.

But that news is well covered elsewhere. So too was the news that Silicon Valley billionaire Peter Thiel was bankrolling the lawsuit. Thiel, it seems, has a personal vendetta against Gawker dating to the time that it outed him as gay on its Valleywag blog.

Don’t worry, I’m going to get to the part about the ambulance chasing, just as soon as I finish bringing you up to speed on motivation:

From yesterday’s New York Times, where Thiel gives his first interview on the subject, he said:

“It’s less about revenge and more about specific deterrence,” he said on Wednesday in his first interview since his identity was revealed. “I saw Gawker pioneer a unique and incredibly damaging way of getting attention by bullying people even when there was no connection with the public interest.”

Mr. Thiel said that Gawker published articles that were “very painful and paralyzing for people who were targeted.” He said, “I thought it was worth fighting back.”

OK, and from motivation we move on to funding lawsuits. Litigation finance is big business as it may be difficult (or impossible) for clients or lawyers of modest means to bring suits without being able to pay experts and other costs. They are generally frowned upon by lawyers as a last ditch effort to continue, due to the very high financing charges. But if needed they do level the playing field when litigating against insurance companies and other well-financed companies.

These finance companies come in at the request of counsel.

So the New York Times finds it important to get a couple of law professors (at least one of which has apparently never set foot in a courtroom or even been admitted to practice law) to dutifully quote in order to make it looks like “experts” have weighed in:

“If you really do have concerns about the merits of this case, finding out who bankrolled it doesn’t really help you at all,” said Mary Anne Franks, a professor at the University of Miami School of Law. Absent any indication that there is something unlawful about how the funding took place, she said, “you would still need to show that there’s something substantively wrong with the ruling.”

But Thiel was a different sort of financier — he went looking for the client.

Thiel tells how he solicited the case, and claimed this was normal:

He said that he hired a legal team several years ago to look for cases that he could help financially support. “Without going into all the details, we would get in touch with the plaintiffs who otherwise would have accepted a pittance for a settlement, and they were obviously quite happy to have this sort of support,” he said. “In a way very similar to how a plaintiff’s lawyer on contingency would do it.” Mr. Thiel declined to disclose what other cases he had supported but there are at least two current cases against Gawker.

A couple things here: First, this is not “very similar” to how a plaintiff’s lawyer on contingency works. Because what he did is solicitation, and the vast, vast majority of lawyers do not contact victims. Solicitation is ambulance chasing.

The second issue, and the reason I write today, is that there is a parallel here to the issue of non-attorneys owning part of a law firm, a matter that has been discussed in various jurisdictions (and which is, thankfully, not allowed in New York).

Non-attorneys owners, after all, are only needed for their money to fund cases and overhead.

While profit is not the motive for Thiel in the Hulk Hogan case (he positions this as a public interest lawsuit), this case is an outlier. But this particular outlier, has important lessons.

This particular funding case — where the funder solicited the client —  is an example of what will happen if you allow non-lawyers to have ownership of law firms. They will solicit. When the plane goes down, when the bus crashes, when the horror hits the front page, the non-lawyer owner may go hunting for business. I wrote about this twice before, both in 2011:

North Carolina to Allow Non-Lawyers to Buy Interest in Firms? (Lousy Idea)

Jacoby & Meyers Sues To Sell Themselves to Non-Lawyers (Lousy Idea)

While New York has a 30-day anti-solicitation rule after a mass disaster, non-lawyers are not bound by Rules of Professional Conduct. And if they we allowed non-lawyer ownership, and they were told to comply with the Rules, what happens when they violate it? Disbarment? The non-lawyer does not lose his livelihood. And his lawyer partners would no doubt say, “Oh my lord! We had no idea!!!” And like that, an intentional ethical violation is downgraded to mere negligence.

So Peter Thiel, in his solicitation of Hulk Hogan, shows the potential future of law if non-attorneys are allowed in the door to own parts of law firms: They will have a vested interest in getting the case, and their solicitations will be to the detriment of the bar’s reputation and the public’s faith in the justice system.

If/when someone feels the need to reach out for counsel, there are plenty of ways to do it. But reaching in, while a family is in shock or grieving, is a recipe for inviting in hustlers and con artists, and seeing people victimized a second time.