All the President's Men: The Ethics of Disputing the 2020 Election

By: George S. Mahaffey | 12.23.22 | Media

Rudy Giuliani is having a bad week. Recent reports suggest a three-member Hearing Committee of the District of Columbia's Board on Professional Responsibility found that the former New York City Mayor violated at least one ethical rule in litigating a lawsuit in Pennsylvania to block the certification of the results of the 2020 presidential election. Bar Counsel has stated that Mr. Giuliani's conduct, in making various false claims about voter fraud, "calls for only one sanction, and that's the sanction of disbarment." While the disciplinary process in the District of Columbia is unique, it is entirely possible that the same type of proceeding may occur in Maryland to the extent any of the attorneys involved in disputing the 2020 presidential election are licensed in Maryland. What might the result be if Bar Counsel began investigating a Maryland attorney for his or her role in falsely disputing the results of the 2020 presidential election?

It is highly likely that the Court of Appeals (now the Supreme Court of Maryland) would find that a Maryland attorney involved in the same or similar litigation that Mr. Giuliani was involved in, particularly concerning false claims of voter fraud, engaged in conduct that was prejudicial to the administration of justice under Maryland Rule 19-308.4(d). The Supreme Court of Maryland has repeatedly held that as for purported violations of Rule 8.4(d), that "we employ different standards in determining whether a lawyer's conduct is prejudicial to the administration of justice based on whether that conduct is related to the practice of law." AGC v. Markey, 469 Md. 485, 501, 230 A.3d 942 (2000). When the "conduct is related to the practice of law, a lawyer's conduct is prejudicial to the administration of justice if it would negatively impact [the] perception of the legal profession of a reasonable member of the public." AGC v. Maiden, 480 Md. 1, 17, 279 A.3d 940, 950-51 (2022) (internal citations and quotation marks omitted).

When considering whether an attorney's conduct negatively impacts the perception of the legal profession in the eyes of a member of the public, the court examines, among others, the substance of the actions or statement at issue, whether they were inartful slips of the tongue or spoken in the heat of the moment, whether they were an isolated incident, and whether they were undertaken in the attorney's capacity as a client's lawyer. Id. at 17, 279 A.2d at 950. In short, if the sum total of the improper statements "brings the legal profession into disrepute," those actions will likely be viewed as prejudicial to the administration of justice. Id. at 19, 279 A.3d at 951. Given the case law, it is reasonable to think that a Maryland attorney who, like Mr. Giuliani, asserts false claims of voter fraud in court will likely find themselves under investigation for violations of Maryland Rule 19-308.4(d).

Goodell DeVries defends various professionals in Maryland, the District of Columbia, and Virginia, including lawyers and law firms. Many of these cases are ethics matters involving Bar Counsel. If you have questions about the above or are a Maryland lawyer facing discipline, please contact us at