The Discipline of Rudy Giuliani and the Real Fraud of the 2020 Election

Abstract

In Matter of Giuliani, the New York Appellate Division held that Rudy Giuliani’s knowingly false statements of fact during the period after the 2020 presidential election violated the Rules of Professional Conduct and warranted interim suspension of his license. This paper argues that the court reached the right result but did not use the best rule and the best rationale. Instead of focusing on Giuliani’s conduct as a series of false statements in support of a “narrative,” the better approach would have been to call it what it was: fraud. Although the fraud was not “transactional,” fraud, Giuliani’s false statements to state legislatures to convince them to not certify or undo the certification of presidential electors for Joe Biden was a kind of “procedural” fraud akin to fraud on a court. All of Giuliani’s false statements can be viewed as supporting that scheme. Focusing on the disciplinary rule prohibiting lawyers from engaging in conduct involving fraud would have avoided doctrinal and constitutional difficulties and better captured the real nature of the harm caused by Giuliani’s conduct. The voting fraud that Giuliani claimed others engaged in to steal the 2020 presidential election for President Biden did not happen. The fraud on state legislatures that Giuliani himself engaged in to steal the election for President Trump did happen. It is time that we recognize the real fraud of the 2020 election.


The draft of this article is currently undergoing cite checking and revision by Catholic University Law Review and will be published in final format in Volume 73 of Catholic University Law Review.

Keywords: Giuliani, election, discipline, fraud, Trump, ethics, First Amendment, reckless