New York’s Supreme Court took the draconian step of suspending Rudy Giuliani, former federal prosecutor, former mayor of New York City, and counsel to former President Trump, from practicing law based on his statements, allegation and, in some cases, presentations in court and court documents, regarding the 2020 election and his clients claims that it had been “stolen.” From the opinion:
“For the reasons that follow, we conclude 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).”
Note that Giuliani has been suspended before the completion of an investigation of the claims against him, or a hearing, based on a conclusion that the public is literally endangered by the possibility of his continuing to make the same claims that former President Trump and many others are making in public every day. The stated justification for the extremely rare interim suspension never explicitly made clear: exactly what is the danger to the public that justifies this? The Supreme Court of the State of New York is simply continuing the false narrative that there was a “violent insurrection” by misguided members of the public on January 6 caused by the insistence of the President and others that the election was “stolen” by the Democrats, and Trump was really elected. Indeed, the Court writes,
“One only has to look at the ongoing present public discord over the 2020 election, which erupted into violence, insurrection and death on January 6, 2021, at the U.S. Capitol, to understand the extent of the damage that can be done when the public is misled by false information about the elections. The AGC [Attorney Grievance Committee] contends that respondent’s misconduct directly inflamed tensions that bubbled over into the events of January 6, 2021 in this nation’s Capitol.”
I shouldn’t have to point out that neither Trump nor any non-lawyers making the “stolen election” claim have been or can be punished by the the Courts or the government, but the New York Bar’s Rules of Professional Conduct can be used to do just that to Giuliani for serving a client the judges don’t like (they are all Democrats). To justify this, the opinion uses the fact that a lawyers’ speech is more subject to regulation than normal citizens because of their “persuasiveness,” supposed trustworthiness as members of a profession that is forbidden from lying, and bootstraps its argument by noting that the real purpose of the Rules us not to punish lawyers, but to protect the public. That is true, but the purpose is to protect the public from being represented by bad and untrustworthy lawyers, or substantively harmed by lawyers assisting criminal or predatory clients, not to muzzle lawyers from making controversial statements in the public square.
This case has been the subject of much debate by my legal ethicist colleagues of late, with a depressing near-consensus that Rudy is getting what he deserves. This is because, I detect, the vast majority of lawyers cannot see through their political biases and Trump hate. At the most simple level, the ruling is premature because contrary to the Court’s certitude, all of the evidence is not in, though the claim that there was widespread election fraud and that the election was “stolen” has for many months been pronounced “a lie” by Democrats and the mainstream media with suspicious vigor. While the opinion makes a convincing case that many of Giuliani’s statements, including some made to courts and government bodies, were careless, sloppy, badly sourced, unprofessional and wrong, it cannot know at this point that his (or Trump’s) general claim is false. If its is not false, then raising doubts among the public cannot be called dangerous to the public. It is more dangerous to keep opinions, arguments and ideas from the public’s awareness “for their own good.”
Thus this is a First Amendment problem. Except for one assertion about the status of a complaint, which he later corrected, Giuliani is not accused of improprieties in court proceedings where he functioned as an advocate. The Court’s focus is almost entirely on Giuliani’s public statements on the radio, in podcasts, on TV shows and news interviews. Alan Dershowitz, along with Jonathan Turley among the very few well-known lawyers (and Democrats) who have managed to maintain their integrity during the nearly five-year attack on Donald Trump, reacted to the interim suspension by telling Breitbart (which I will not link to after being burned to many times),
“I taught legal ethics for, I don’t know, 35 years at Harvard Law school. I think of myself as a leading expert on legal ethics. I’ve never ever seen a case where a lawyer was essentially disbarred … without a hearing. The most basic concept of due process is you don’t deprive somebody of his living, of his freedom, of his ability to work without a hearing. And then the criteria under which they suspended his law license is so vague. It says in the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person. In other words, if he goes on your show, or he goes on my podcast, or he goes on Fox or anywhere else, and he makes a statement which turns out to be false, and he had reason to believe it was false, he could be disbarred. Do you know how many lawyers we’d have left if we applied that standard across the board? … We have case after case after case where prosecutors, defense attorneys, lawyers of every kind, have made statements … which turn out to be untrue, and they’re never disbarred. And certainly not without a hearing. And so, this is a first. …The atmosphere is such today that if you defended President Trump in any way, they’re out to get you. And they’re certainly out to get Rudy Giuliani.”
In other words, the suspension is a politically motivated silencing. I strongly suspect that anti-Trump bias was at the heart of this slap at Giuliani, as Dershowitz says. Turley, in a piece for The Hill, expressed similar concerns:
“[T]he fluid standard applied in Giuliani’s case raises serious concerns over how and when such suspensions will be imposed against lawyers in public controversies. Indeed, the Giuliani standard would seem to implicate a wide array of attorneys who straddle the line of legal and political advocacy….
“Many lawyers can be accused of fanning unrest or even violence, in cities ranging from Washington, D.C., to Portland, Ore., through their declarations on subjects ranging from police shootings to election fraud.
“Likewise, Democratic members of Congress have challenged presidential elections regularly and unsuccessfully, including challenges made at the certification of the votes before Congress. Many refused to recognize the legitimacy of Trump’s presidency. Yet there was no cry to disbar the lawyers or the members behind those challenges.
“Take Marc Elias, one of the loudest Democratic voices denouncing Giuliani (and other Republican lawyers) as attacking democracy itself. The Perkins Coie attorney led efforts to challenge past Democratic election losses; in one such case, he argued that Rep. Claudia Tenney (R-N.Y.) effectively stole the election from Democrat Anthony Brindisi, arguing in court that “there is reason to believe that voting tabulation machines misread hundreds if not thousands of valid votes as undervotes, and that these tabulation machine errors disproportionately affected Brindisi.” That should sound familiar.
“Elias, who heads a group called Democracy Docket, has been accused by critics of lying about past election controversies. Before the 2020 election, there was the 2016 election scandal based on the infamous Steele dossier’s sensational, unsupported claims of collusion between Trump and the Russians. However, throughout the election, the Clinton campaign and its lawyer, Elias, allegedly denied that it had funded the dossier. After the election, journalists discovered that the Clinton campaign disguised payments for the dossier as “legal fees” paid to Elias’ law firm. New York Times reporter Ken Vogel said Elias “pushed back vigorously, saying ‘You (or your sources) are wrong.’ ” Times reporter Maggie Haberman wrote: “Folks involved in funding this lied about it, and with sanctimony, for a year.” When Clinton campaign chairman John Podesta was questioned on the matter by Congress, he denied any contractual agreement regarding the dossier. Sitting beside him was Elias, who reportedly said nothing to correct the false information given to Congress.
“So, Elias was accused in these reports of lying to the public, the media and Congress. He has every right to defend himself and prove his innocence on such allegations. Yet, none of the “leading lawyers” cited by the New York court or in the media called for a bar investigation let alone a suspension.
“The fact is that many reckless statements are made by lawyers about elections and other controversies. Even President Biden has been confronted over his false statements about Georgia’s election law; rather than correct his claims, he has continued to repeat them – just as the court cited Giuliani for doing outside of court.
“Lawyers often make sensational, false claims that inflame public opinion, such as insisting former Attorney General William Barr violently cleared D.C.’s Lafayette Square last year to arrange for Trump’s controversial photo op outside St. John’s Episcopal Church. The claim outraged many Americans, even though there was no evidence to prove it; several lawyers repeated the photo op myth as fact on TV. An inspector general and a federal court both later debunked the myth, but the damage was done: To this day, many people believe it. Nevertheless, I do not believe any lawyers should be suspended for such claims, which should be protected as free speech.”
The double standard is even worse than Turley describes. Dangerously reckless statements by race-baiting lawyers like the late Johnny Cochran and Ben Crump while representing their clients have never been the object of discipline, even when they could be easily linked to subsequent violence.
In an op-ed in the Washington Post, Bruce A. Green, the director of Louis Stein Center for Law and Ethics and Rebecca Roiphe, a Professor of Law and co-dean for faculty development at NYU, added,
“Lawyers don’t sacrifice their constitutional rights completely when they join the bar. Their expressive freedom can be constrained, but only when the government has a compelling reason to do so….It is unlikely that the public credits media personalities who are attorneys more than others, or that, when these attorneys are caught in lies, the public sees it as a reflection on the entire legal profession. It seems likely, for instance, that the harm from Giuliani’s lies resulted from his proximity to the former president rather than his status as a lawyer.”
And that the degree of animus against his client was the primary factor in triggering the suspension…
The professors continue,
“Lawyers have the right as private citizens to engage in political debate. This includes a right to lie about the government — not because lies are desirable, but because it is too dangerous to give the state the power to determine which statements are true or false when it comes to political speech. Robust political debate would be chilled because people would fear misspeaking. Efforts to expose government wrongdoing would be abandoned out of concern about retribution. To encourage criticism of the government, the First Amendment gives the public breathing room. Lawyers need it too. They should not have to choose between a law license and the license to engage in the same vigorous political speech as other citizens. It is true that lawyers are officers of the court, but they have also historically played an important part in holding government to account. It would be a shame to strip them of this powerful role.”
Where do I stand? First, let me again condemn the professorial tendency to water down what should be ringing endorsements of basic rights. Gee, “it would be a shame” to use the disciplinary rules as a political weapon to curtail speech. Yecchh!
Second, I have to admit that I am a near absolutist on lawyers lying in public statements. I think doing so should be a violation of the Rules, even when the lie doesn’t involve the representation of a client. Lawyers are lawyers all the time, 24-7: this is something that I emphasize in my introductory course for new members of the D.C. Bar. Any time a lawyer lies in public about anything, he or she harms the profession. However, the state bars have adamantly refused to discipline lawyers regarding non-client-related statements. That is why John Edwards still has a law license. The fact is that such lies, or presumed lies, and lies involving a client representation that is not made in court or before a tribunal, are not punished, and certainly not punished without a hearing. Giuliani, like so many other aspects of the 2016 Post Election Ethics Train Wreck, has been the victim of a double standard predicated on the hatred of Donald Trump. That’s unethical.
Finally, it does appear that Giuliani’s legal representation of Trump was at least incompetent, and his affidavit to the Court in defense of his various statements sounds atrocious, though I have only read the Court’s excerpts. He’s 77 years old: Rudy should fight to have this dangerous precedent overturned, and then retire from the practice of law.
Then he can say anything he wants to.
Ethics Alarms 
Rudy giving a parade of press conferences promising mountains of evidence of a dastardly conspiracy, only to produce a handful of lunatic witnesses, who, credible to other lunatics, have helped keep the QAnon fantasy of a stolen election strong enough to block further investigation of a planned Congressional insurrection is about as close as one can get to the “shouting fire in a crowded theater” end of the spectrum without actually shouting fire in a crowded theater, and can be placed with laws about pornography and cross-burning in terms of their chilling effect on the First Amendment. That other perhaps-left-leaning lawyers ought to have been similarly reprimanded is interesting, but not relevant to any Rudy defense. They made the right call.
By applying a standard that has never been applied to anyone else? Not in legal ethics, its’ not the right call. Nor is Giuliani responsible for Qanon conspiracy theories—this is the same logic as “Don’t call it Wuhan virus because assholes will start beating up Japanese people.The way the pandemic was used to leave voting less secure and more subject to manipulation was a real fire, as much as the news media and Democrats tried to pretend the smoke wasn’t there. “That other perhaps-left-leaning lawyers ought to have been similarly reprimanded” iis more than interesting—it shows that a new standard of professional misconduct was created to punish a lawyer for daring to represent the Bad Orange Man. This is why Trump had trouble finding law firms to handle his election challenges and his impeachment defense, and it is a direct attack on the justice system and the right to be represented.
I didn’t and don’t hold Giuliani responsible for QAnon, nor did I say so. If the standard is uttering inflammatory and false rhetoric in a volatile and possibly violent situation, then the right decision was reached–and should have been reached, as you point out, lots of times previously. There is no evidence that Trump’s trouble with finding law firms was because of their fear of being silenced, but that his case was weak. It is. Giuliani’s purported mountain of strong evidence is nowhere in sight. It was unethical for him to say he had one.
Lawyers and law firms take weak cases all the time—that’s their job. The firms were intimidated by threats from clients. That’s a matter of record.
I’ve had cases where attorneys have demanded to know my legal arguments in advance, then threatened to file ethics complaints if I make them for making “false statements of law or fact.” After the second time I’ve just started saying “you’ll see my arguments when I file my brief.” Judges really don’t like it here when lawyers try to go after one another personally or professionally, especially when it’s to try to gain an advantage.
I wonder if there ought to be a special term for deciding to enforce an ethical principle at a dubious juncture, when it’s never been enforced before. Hypocrisy doesn’t quite cover it, because the term describes enforcing the standard when it suits you, and not enforcing it when it doesn’t. Perhaps we could call dusting off a standard virtually never enforced before at a suspicious moment the Giuliani Principle?
As soon as I read, “Shouting Fire ….crowded theater.” I think of ‘Godwin’s Law.’
Me too. It needs its own law: “White’s Law” perhaps, after Popehat whiz Ken White, who repeatedly explained why the quote was both misused and wrongly employed originally?
“fire in a crowded theater,” like most clichés, has permuted over time from its original meaning to a more abstract cultural one–that of speech that ought not to be protected, and Bob’s your uncle.*
*not referring to Robert Gascoyne-Cecil
Nope. It’s a term of art, from a court case, and it means what it has always meant deliberately causing a panic by shouting false warnings and lies. The fact that it is often ignorantly misused doesn’t change anything, just as “literally” can’t mean “figuratively.”
I do see that in my second comment I omitted the word “not”–ie, that “fire in a crowded theater” is used culturally to mean speech that is NOT protected. Sorry about that.
In my original use of the term I used it under its exact definition. Giuliani said he had a mountains of hard evidence of widespread organized election fraud which overturned a huge Trump victory. That was not true, and it certainly appears that Rudy knew it wasn’t true, and said it deliberately to sew panic still being unsewn.
Unless it rises to the level of deliberate incitement to riot, it IS protected. By no caselaw could Rudy’s statements, lies or not, be called unprotected. That’s not even in question.Nor in the instance of Trump’s remarks to the demonstrators. Absolutely First Amendment speech.
Seems a bit much to say it’s not even in question when in fact both people’s speeches are the subject to much debate.
With one side entirely made up of those either deliberately or negligently misrepresenting the law. Incitement requires evidence of intent. There is none.
“planned Congressional insurrection”?
You mean the one where the only ones armed were the police, and the only one fatally shot was an unarmed female veteran? That insurrection? Spare us your Trump-deranged musings, please.
That more people weren’t harmed was moral luck, of course, and of course we’d know who was organizing (and who was armed) were there, you know, an investigation.
The Capitol police could just release the 10,000 hours of security footage they are sitting on and all the questions would be answered. They won’t do that. Why won’t they do that, do you think?
Why is Pelosi preventing the video footage from public dissemination and why has the officer who killed Babbet not been identified?
Incidently, why were 5he three nights of rioting in Lafayette Square where attackers injured over 100 secret service officers and the President was told by security persons to go to the bunker for his safety not called an insurrection?
The same reason Antifa taking over a city hall and several blocks in a major city, building a wall around it, declaring it their own sovereign country, making a list of demands to the city to get their land back, patrolling it with armed thugs, and killing two Black teenagers in the process was NOT called an insurrection.
“ that respondent communicated demonstrably false and misleading statements to courts”
If I were Giuliani, I would demand that they demonstrate that those statements are false.
The thing is: they can’t. They rely on vote counts that are impossible to verify. To demonstrate the falsity of his statements would take a massive recount of millions of ballots for which proper foundation could not be made.
And that is a huge point: there is no reason to trust the process was fair.
-Jut
Does this rationale apply to any lawyers who pushed the “Hands Up, Don’t Shoot” narrative?
Or are only some insurrections bad?
Can we dispense with the notion that New York state is anything other than a banana republic at this point?
Andrew Cuomo and Letitia James have targeted the National Rifle Association for destruction over their Second Amendment activism (when the AMA has its own insurance company, the claims against NRA leadership being used to justify its dissolution are absurd).
Cy Vance has been investigating former President Trump’s companies – after he won the presidency.
There’s what is being done to Giuliani.
What else will Cuomo and James do? Which conservatives will face trumped-up charges in New York?
On my legal ethicist listserv, many members are cheering on the lawyer–a member— who filed the most detailed complaint against Rudy. It’s pure partisan politics, and pretty disgusting.
The breadth and depth of Trump hatred, particularly among the elite and the elite in metropolitan New York City is immeasurable and apparently everlasting, or at least will last until Trump is dead. Truly breathtaking.
That creep Mark Elias attended my undergraduate school. He’s spoken there repeatedly and is hailed as a model alum. Yuck.