I haven’t posted in nearly a month. What more appropriate way to make my return than with quiz questions?!?!
A few days after my last post, a disciplinary panel recommended disbarment for Rudy Giuliani. Today, I’ll use the recommendation to highlight an aspect of the disciplinary process that might be unfamiliar to many lawyers: the “choice of law” provision that has been adopted by many jurisdictions, including Vermont.[1]
Let me emphasize this sentence:
- “A few days after my last post, a disciplinary panel recommended disbarment for Rudy Giuliani.”
The sentence does include any geographic information. Giuliani is licensed in New York and Washington D.C. The panel recommended disbarment after concluding that Giuliani pursued frivolous election claims while admitted pro hac vice to the United States District Court for the Middle District of Pennsylvania. If adopted, the recommended sanction will be imposed against Giuliani’s DC law license.
Question 1: who prosecuted Giuliani?
- A. DC’s Disciplinary Counsel
- B. Pennsylvania’s Disciplinary Counsel
- C. New York’s Disciplinary Counsel
- D. DOJ’s Office of Professional Responsibility
Question 2: The disciplinary prosecutor charged Giuliani with violating the _________ Rules of Professional Conduct.
- A. District of Columbia
- B. Pennsylvania
- C. New York
- D. Third Circuit
Question 3: the disciplinary case was heard by a panel of the __________ Board of Professional Responsibility.
- A. District of Columbia
- B. Pennsylvania
- C. New York
- D. DOJ’s Office of Professional Responsibility
I’ll let you think.
If we were at an in-person seminar, I’d use your thinking time to hum the tune to Final Jeopardy. I’d also muse about how disappointed I was with so many of Jeopardy’s July episodes. On the bright side, a recent Final Jeopardy provided fodder for (what I think will be) an (amazing) introduction to an upcoming Five for Friday quiz.
Ok, that should be enough time. The answers are:
Question 1: who prosecuted Giuliani?
- A. DC’s Disciplinary Counsel
- B. Pennsylvania’s Disciplinary Counsel
- C. New York’s Disciplinary Counsel
- D. DOJ’s Office of Professional Responsibility
Question 2: The disciplinary prosecutor charged Giuliani with violating Rules 3.1 and 8.4 of the _________ Rules of Professional Conduct.
- A. District of Columbia
- B. Pennsylvania
- C. New York
- D. Third Circuit
Question 3: the disciplinary case was heard by a panel of the __________ Board on Professional Responsibility.
- A. District of Columbia
- B. Pennsylvania
- C. New York
- D. DOJ’s Office of Professional Responsibility
The DC panel’s recommendation is here. The “conclusions of law” section begins with this paragraph:
- “Respondent’s conduct took place in connection with a matter pending in the United States District Court for the Middle District of Pennsylvania, which has adopted the Pennsylvania Rules of Professional Conduct. See M.D. Pa. L.R. 83.23.2. Disciplinary Counsel therefore charged Respondent with violating Pennsylvania’s Rules of Professional Conduct 3.1 and 8.4(d). See D.C. Rule of Professional Conduct 8.5(b)(1) (For conduct in connection with a matter pending before a tribunal, the rules to be applied shall be the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise . . ..’).”
Vermont’s rule tracks D.C.’s. Here’s our entire rule:
Rule 8.5. Disciplinary Authority; Choice of Law.
(a) Disciplinary Authority. A lawyer admitted to practice in Vermont is subject to the disciplinary authority of Vermont, regardless of where the lawyer’s conduct occurs. A lawyer not admitted in Vermont is also subject to the disciplinary authority of Vermont if the lawyer provides or offers to provide any legal services in Vermont. A lawyer may be subject to the disciplinary authority of both Vermont and another jurisdiction for the same conduct.
(b) Choice of Law. In any exercise of the disciplinary authority of Vermont, the rules of professional conduct to be applied shall be as follows:
(1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and
(2) for any other conduct, the rules of the jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.
Paragraph (b)(1) applies to situations similar to Giuliani’s. For example, imagine that a lawyer who is licensed in Vermont commits misconduct while appearing pro hac vice before a Pennsylvania tribunal. Jon Alexander, Vermont’s Disciplinary Counsel, can charge the lawyer with violating the Pennsylvania Rules of Professional Conduct and can file the charges with a hearing panel of the Vermont Professional Responsibility Board. The panel’s decision would be subject to appeal to or review by the Vermont Supreme Court.
As always, let’s be careful out there.
[1] This is not the first Giuliani matter I’ve used to address (what might be) obscure aspects of disciplinary procedure. Just over two years ago, Giuliani’s New York law license was suspended pending resolution of a disciplinary complaint that had been filed against him. I used the order to outline Vermont’s rule on emergency immediate interim suspensions. As of today, the underlying complaint has not been resolved and Giuliani’s NY law license remains suspended on an interim basis.
Ethical Grounds 