Wait, my law license can be suspended without a hearing?

Well, well, well. It seems that the attorney for the former president, landscaping company press conference aficionado, and frequent target of ridicule Rudy Giuliani needs to take an indefinite time out in New York, as his license to practice law there has been suspended on an interim basis pending investigation.

The basis for this suspension is set forth in this order from the First Judicial Department, but briefly summarized, in New York, an attorney can be suspended prior to formal investigation or hearing pursuant to Sec. 1240.9 of the Rules for Attorney Disciplinary Matters, “upon a finding by the Court that the respondent has engaged in conduct immediately threatening the public interest.”

Here, the court concluded:

that there is uncontroverted evidence that respondent 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. These false statements were made to improperly bolster respondent’s narrative that due to widespread voter fraud, victory in the 2020 United States presidential election was stolen from his client. We conclude that respondent’s conduct immediately threatens the public interest and warrants interim suspension from the practice of law, pending further proceedings before the Attorney Grievance Committee (sometimes AGC or Committee).

(Order, p.2.) From my admittedly anecdotal conversations online today, this seems to be an extraordinary step, as holders of professional licenses are entitled to due process, and that usually means a full opportunity to respond to the charges and be heard.

I sometimes get asked by my own clients whether the Office of Lawyer Regulation or the Supreme Court can just suspend a lawyer based on allegations or an initial investigation, ahead of more formal investigation or hearing. The answer, at least in Wisconsin, is yes, but such a process is rare.

That said, there are a couple of circumstances that may give rise to interim suspensions like this.

The closest Wisconsin analog to what happened in New York is a temporary suspension, again following a motion and an order to show cause, “where it appears that the attorney’s continued practice of law poses a threat to the interests of the public and the administration of justice.” (SCR 22.21.) These cases are rare—I only located six cases referencing this Rule in the Professional Discipline Compendium — and generally involve medical incapacity or cases which it is likely apparent from the outset that revocation will be the result.

Another circumstance in which a lawyer can be suspended ahead of an investigation is upon a conviction of a serious crime (a felony or any lesser crime that reflects adversely on the attorney’s fitness to practice law) under SCR 22.20. As a reminder, attorneys are required to self-report all criminal convictions under SCR 22.15(5), even if the conviction does not implicate fitness to practice law. Wisconsin is not a jurisdiction that automatically disciplines or disbars attorneys upon conviction of felonies, but failing to report a conviction is an independent violation of the rules.

I do note that SC 22.20 indicates that the Supreme Court “may” summarily suspend an attorney found guilty or convicted of a serious crime, and in my own practice, “may” does a lot of work. Typically, either the lawyer is incarcerated and not practicing anyway, or the OLR does not seek summary suspension in the first place.

A more common circumstance is a summary suspension, following a motion and order to show cause, for failing to cooperate with an investigation under SCR 22.03(4). These types of suspensions are easy to avoid—and, generally, the consequences for not cooperating with an investigation can be far more harsh than whatever discipline was going to flow, or not, from the grievance.

And while we’re at it—while you can’t be disciplined for dumb things your family members say about the investigation in furtherance of their political careers, if your adult child is inclined to do this, maybe to try to talk them out of it. It’s not a good look.