Welcome to Friday and the 231st legal ethics quiz!
Judging from the number of emails that I received yesterday, people took note of the order suspending Rudy Giuliani’s law license. More than one person commented that Giuliani had been disbarred. He was not. Rather, his license to practice law in New York was suspended on an interim basis.
So, I thought I’d use today’s column as a teachable moment to (1) outline Vermont’s disciplinary process and a specific aspect thereof: the immediate interim suspension of a lawyer’s law license; and (2) explain the effect of yesterday’s order.
In Vermont, every disciplinary complaint is reviewed by “screening counsel.” Complaints are either dismissed, referred for non-disciplinary dispute resolution (diversion), or referred to disciplinary counsel for an investigation.
Upon referral of a complaint, disciplinary counsel investigates. If the investigation leads disciplinary counsel to conclude that the evidence supports an allegation that the lawyer violated the Rules of Professional Conduct, there are two ways to commence formal disciplinary proceedings.
The first is via stipulation. Disciplinary counsel and the respondent file stipulated facts with a hearing panel of the Professional Responsibility Board.
The second is via “petition of misconduct.” A petition of misconduct is analogous to a civil complaint. It includes factual allegations and, if you will, “counts” that allege violations of the Rules of Professional Conduct. Before filing a petition of misconduct, disciplinary counsel must first file a “request for review for probable cause.” The request summarizes the investigation and argues why the lawyer should be charged. If granted, a petition of misconduct follows and is assigned to a different hearing panel than considered the request for review for probable cause. The lawyer must file an answer to the petition. Then, following a 60-day period in which limited types of discovery are allowed, an evidentiary hearing takes place.
Whether charges are commenced via stipulation or petition of misconduct, disciplinary counsel bears the burden of proving a violation by “clear and convincing” evidence. Both disciplinary counsel and the lawyer can appeal the panel’s decision to the Vermont Supreme Court. Or, even if no appeal is taken, the Court can order review on its own motion.
That’s the typical process. Throughout, the lawyer is authorized to continue to practice law.
However, the rules that govern the Professional Responsibility Program recognize that there will be cases so serious that the lawyer should not be allowed to practice pending the outcome of the investigation. By rule, if disciplinary counsel receives “sufficient evidence demonstrating” that a lawyer has violated the rules and “presently poses a threat of serious harm to the public,” disciplinary counsel must transmit the evidence to the Supreme Court, along with a proposed order for the immediate interim suspension of the lawyer’s license. If granted, the interim suspension remains in effect until the final resolution of the underlying disciplinary complaint via the process outlined above. In that sense, I suppose an interim suspension is analogous to “hold without bail” in a criminal matter.
Unsurprisingly, it’s rare to request an interim suspension. In Vermont, they generally issue when a lawyer abandons a practice, commits a serious crime, suffers from a severe behavioral health issue, misappropriates client funds, or refuses to cooperate with a disciplinary investigation.
New York & Giuliani
New York’s judicial system is structured differently than Vermont’s. In New York, there are four appellate divisions of the supreme court, one in each of the state’s judicial departments. As the Giuliani opinion stated, “[e]ach Judicial Department of the Appellate Divisions of the New York Supreme Court is responsible for the enforcement of the Rules of Professional Conduct within its departmental jurisdiction.” Misconduct is investigated and prosecuted by the Attorney Grievance Committee in each department.
As in Vermont, there’s a typical process by which matters proceed through the system. Quoting again from the Giuliani opinion, “[i]n certain cases, the Committee may, during the pendency of its investigation, make a motion to the Court for an attorney’s interim suspension. Interim suspension is a serious remedy, available only in situations where it is immediately necessary to protect the public from the respondent’s violation of the Rules [of Professional Conduct.]”
That’s what happened yesterday. The Supreme Court of the State of New York for the Appellate Division of the First Judicial Department concluded that Giuliani had violated three rules and should be immediately suspended from the practice of law. Specifically, the court stated that the Attorney Grievance Committee:
- “has made a showing of an immediate threat to the public, justifying respondent’s interim suspension. We find that there is evidence of continuing misconduct, the underlying offense is incredibly serious, and the uncontroverted misconduct in itself will likely result in substantial permanent sanctions at the conclusion of these disciplinary proceedings.”
In sum, yesterday’s Giuliani decision was the equivalent of the Vermont Supreme Court immediately suspending a lawyer’s law license pending the outcome of a disciplinary investigation. I don’t know when the Giuliani matter will finally resolve. However, until it does, Giuliani’s New York law license will remain suspended.
Onto the quiz.
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By rule, a lawyer shall not use information relating to the representation of a former client to the former client’s disadvantage. One exception is when the information ______:
- A. has become generally known.
- B. is public record.
- C. Trick question. There are 2 exceptions, and they are A & B.
- D. Trick question. There are no exceptions.
Consider the following:
- must be in a writing that is signed by the client.
- cannot be used for representing a defendant in a criminal case.
- cannot be based on securing a divorce.
Here, we’re considering:
- A. Contingent fee agreements
- B. An agreement to allow the lawyer to treat a fee paid in advance as “earned upon receipt.”
- C. An agreement to limit the scope of a representation.
- D. All the Above.
There’s a rule that applies to “prospective clients.” To qualify for the protections afforded by the rule, the prospective client must:
- Consult with the lawyer in good faith.
- Pay for the consultation.
- A & B.
Which is prohibited by the Rules of Professional Conduct?
- A. Accepting cryptocurrency as payment for legal fees.
- B. Accepting stock in the client’s company as payment for legal fees.
- C. Accepting payment of legal fees via mobile app like PayPal or Venmo.
- D. None of the above is a per se violation of the rules.
Speaking of Giuliani . . .
. . . 1993, Giuliani had a cameo as himself in Seinfeld. The episode included a fictionalized version of Giuliani’s campaign for mayor of NYC. The plot focused on whether a restaurant had falsely marketed a particular food product as “non-fat.” Due to a mishap caused by Kramer, a sample of Giuliani’s blood revealed high levels of cholesterol. Giuliani, who had regularly frequented the restaurant, immediately promised voters an investigation into the potential fraud. The controversy surrounding the falsely labeled food product swept him to victory.
Name the food product.
Bonus: in 2021, Giuliani won Razzies for “Worst Supporting Actor” and “Worst Screen Combo” for his appearance in a movie.
Name the movie.