The New York State Bar Association’s Annual Meeting kicked off Tuesday morning with a timely discussion about the ethics of accepting a frivolous lawsuit that quickly focused on President Donald Trump’s election fraud claims and the conduct of his attorney Rudy Giuliani in the 60 cases that were dismissed in courts nationwide.
“It does suggest that they were frivolous to me, that there was a lack of evidence,” said Andrea Bonina, chair of the Grievance Committee for the Second, Eleventh and Thirteenth Judicial Districts, and a partner at Bonina & Bonina in Brooklyn.
Bonina noted that the committee has received complaints about Giuliani but that they would be handled in the First Judicial Department, which she does not oversee.
“The arguments advanced on behalf of the president…you can test a theory but once it is rejected by courts over and over again, it’s something that you have to have a recognition it’s not something you can continue to advance,” she said.
Additionally, Bonina addressed Giuliani’s “trial by combat” comment prior to the riot at the Capitol on Jan. 6.
“That concerned me very much because that seems to be inciteful and encouraging a criminal act that we would follow up on,” said Bonina. “That concerns me beyond the whole frivolous litigation issue that concerns me ethically.”
Bonina was one of four panelists for NYSBA’s General Practice Section and Committee on Professional Discipline’s webinar entitled “Ethics of Accepting a Frivolous or Questionable Representation.”
Because many thorny ethical issues are not expressly addressed by any model or state code of ethics, the aim of the discussion was to impart user-friendly advice that will ultimately strengthen the ethical footing of firms and their clients.
Also on the panel: Hon. Philip M. Halpern, U.S. District Court, Southern District of New York; Michael S. Ross, of the Law Offices of Michael S. Ross in New York and Douglas H. Wigdor, founding partner of Wigdor Law. The panel was moderated by Joel Cohen of Stroock & Stroock & Lavan in New York.
While Halpern did not directly address Giuliani’s actions, the judge said that in an instance where similar cases are being dismissed in other jurisdictions, he would question the lawyers carefully and ask them, “Why is this case different?”
During the discussion, Ross, who concentrates his practice on attorney ethics, explained the common “buckets” of frivolous cases – a suspicious set of facts so peculiar that it should not have been brought, a lack of evidence, delusional claims or fabricated evidence by the client.
Halpern said in his relatively short time on the bench so far, he’s not seen blatantly frivolous claims but the ones with weak arguments “stand out enormously in the real world, even on Zoom.”
“The real arguments just roll forward,” said Halpern. “The squeaky ones are the ones that you raise your hand and say, ‘Wait a minute, let’s talk about this for a second.’ Those lawyers need to be careful actually because telling the judge the truth and taking truthful positions on the facts and the law is critical.”
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When the conversation turned to whether or not the panelists felt they needed to believe their clients, the answers were mixed.
“A lawyer has to be diligent and competent – get the facts,” said Ross. “The lawyer can have doubt about the facts but that’s why we have a jury system to test what we’re saying…. You say ‘Michael I only want a lawyer who believes me…’ I say I’m the wrong lawyer for you because I don’t really take a view.”
Wigdor, who specializes in sexual assault cases and at one time represented Tara Reade, a former U.S. Senate staffer who accused President Joe Biden of digitally penetrating her without consent in a secluded area of Congress in 1993, strongly disagreed.
“I’ve never taken a case on, frankly, that I don’t believe in,” said Wigdor.
Wigdor noted that he was bringing up the Reade case because it was timely since the inauguration was the next day, and said he still believes Reade’s allegations.
Wigdor, who dropped Reade as a client less than two weeks after being hired, said he was hired by Reade to help deal with the media and explained why he stopped representing Reade.
“After my trying to help her, not successfully frankly against the press, which was just completely one-sided, the next step would’ve been to file a complaint,” said Wigdor. “We took a good hard look at the statute of limitations, the Adult Survivors Act – there wasn’t one in D.C., a potential defamation claim that would’ve been similar to the defamation claims filed against now President Trump for his various denial of sexual assault cases… but we decided that there wasn’t enough to actually file a complaint that wouldn’t be frivolous.”