Down The Slippery Slope To Lawyer Censorship: First Giuliani, And Now This

silence

Rudy Giuliani, as discussed here, was just suspended from the practice of law on the basis of out of courts statements that the New York bar disagrees with, while representing a client they hate (Donald Trump), using a standard that has never been applied to a lawyer before.

Yet what was just done to South Carolina lawyer David Paul Traywick by the state Supreme Court was even worse, and more ominous. The Court ordered his suspension from the practice of law based on social media posts that were pure opinion, and that had no connection to the practice of law at all. Traywick lost his license for six months. He will also have to complete at least one hour of diversity education, undergo an anger management assessment, submit to an evaluation through the South Carolina Bar program Lawyers Helping Lawyers, and comply for one year with any treatment recommended by “re-education” authorities.

The Court felt justified punishing him after the South Carolina Office of Disciplinary Counsel received complaints from 46 people about Traywick’s Facebook posts. The posts were accessible to the public, and his profile identified himself as a lawyer while mentioning his law firm his law firm.

The Court found twelve posts by Traywick “troubling.”I will interject here that an individual’s statement on social media are none of a court’s business, indeed none of its damn business, unless they are libelous or criminal, or evidence in a case before it. None of the posts fit into those categories. Two of the posts nonetheless triggered the suspension:

  • On April 5, 2020, Traywick posted what the Court calls “an offensive comment regarding tattoos,” apparently so offensive the the opinion won’t even enlighten us to what it was. After whatever it was he was saying about tattoos, which could have only been an opinion, he  challenged his readers, “Prove me wrong. Pro tip: you can’t.” In a subsequent post in response to a comment, he wrote, “The general statement has exceptions, such as for bikers, sailors, convicts or infantry. But these college educated, liberal suburbanites. No, the rule was written for these boring mother fuckers. And they are everywhere. Fuck em. Especially these females, Jesus Christ!”
  • On June 3, 2020, at the peak of the George Floyd Freakout, they lawyer posted, also on Facebook,  “Here’s how much that shitstain’s life actually mattered: Stock futures up. Markets moved higher Monday and Tuesday. Fuck you. Unfriend me.

By no stretch of the imagination or the Rules of Professional Conduct do those statements justify suspending a lawyer’s right to practice law. It is protected speech under the First Amendment. It does not involve the practice of law. The comments are profane, but profanity is not grounds for discipline out of a legal context. They are vulgar, but the same hold with those. They may offend readers, but nobody is forcing readers to follow this jerk. The lawyer appears, based on his comments, to be an asshole, but being an asshole is not a disqualification for practicing law. It is often an asset, some might say. He may have been lying, but not in any way that could be linked to his trustworthiness as a lawyer, and lies are also protected speech unless they constitute fraud or perjury.

Yet the Court wrote,

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Re Rudy Giuliani’s “Interim Suspension”

rudy_giuliani_ap

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 misled 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 t 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:

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Failed Late Thursday Ethics Review, 11/19/2020 Turned Early Friday Ethics Warm-Up, 11/20/2020: Let’s Play “Stupid or Not Stupid”!

Unrelated to any kind of stupid: Yesterday was the anniversary of the demise of my old friend, Glenn White, in 2013. I never got to attend a funeral or service for Glenn; his family didn’t see fit to let me know he had died, despite our association of thirty years. This is what I always will remember about Glenn: He knew what it meant to be a friend. We knew each other through theater, though he was a Fairfax City, Virginia politician. Glenn used to say, “If you need me, Jack, you just have to ask. I’ll be there.” And he always was. When he was in his late 70s, I needed someone to play an old man in one of my theater company’s shows. Glenn used to call himself The American Century Theater’s resident geezer, but he had moved to the Virginia countryside, and it was more than a three hour commute, round trip, to rehearsals and performances. My plight was barely out of my mouth when he said, “Sure, you can count on me.”

How many people do you get to meet in your life who are like that?

1. I really hate this...I spent precious time, as I was trying to get a post in before the clock struck 12 last night, writing about this story, published yesterday and passed along credulously by a U.S.news aggregator, only to find that the events described happened in 2019. I have encountered this before: some website is light on material, so it uses an old story for click-bait without stating the time frame until the very end.

2. Today’s inexcusable, biased, partisan and unethical headline from the New York Times front page: “Trump Targeting Michigan In Ploy To Subvert Election.” Clearly, the Times isn’t even trying any more. The use of “ploy” and “subvert” is not only editorializing, it’s irresponsible editorializing. There were certainly a lot of strange things going on in the Michigan voting and vote-counting;the state should be targeted. (There are strange things going on in Michigan generally.) If the Michigan vote was corrupted, discovering how and how much doesn’t “subvert” anything. If it turns out that Michigan actually was won by Trump—admittedly a remote possibility—then that discovery prevents the election from being subverted.

The Times’ job is to explain what the Trump campaign’s challenges to the election are in factual terms, not to speculate on diabolical motives, to trigger violence and subvert democracy.

3. What does this display remind you of?

Belgian phallus

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Sunday Ethics Infusion, 17/15/2020: “Run Away!”

1. To channel Scarlet O’Hara…If one more Trump-Deranged individual accuses me of  adopting right-wing media conspiracy theories, I will get angry, and they won’t like me when I’m angry. I accept analysis from no one, especially from the likes of (the former version of) Fox News, Breitbart, Mark Levin and others of note. If I like a legitimate authority’s analysis (like, say, Andrew McCarthy, Ann Althouse or Jonathan Turley), I will credit them for it. “It sure is suspicious that your points agree with theirs” I was told today. It’s no more suspicious than the fact that their stated analysis agrees with mine. I’m not tolerating this insult. I’m at least as informed, educated and intelligent as those I am accused of “parroting,” and I’m considerably more informed, educated and intelligent than the typical knee-jerk progressive water-carrier who tries to win arguments they have neither the wit nor the facts to support by calling me incapable of forming my own opinions.

2. An update! The original collection of movie clips that Ethics Alarms uses repeatedly to illustrate certain points has been expanded considerably.

3. “Run away!” I see that conservatives are “fleeing” Facebook and Twitter for the allegedly more accommodating and less censorious environs of Parler and MeWe. EVERYONE should bolt from Facebook and Twitter if they have any concern about the social media platforms manipulating public opinion and possible tilting the election by partisan censorship, not to mention the mendacity of both platforms’ CEOs and their basic lack of trustworthiness.

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KABOOM! “Human Sacrifice, Dogs And Cats Living Together, Mass Hysteria!”… If I Hadn’t Seen This, I Wouldn’t Have Believed It, And My Head Wouldn’t Have Exploded

Remember, Donald Trump is the fascist who is trying to crush democracy. Just repeat that to yourself as you consider this, and maybe…no, it still will still make your head explode.

Joe Biden’s presidential campaign, in the persons of  Biden’s top aides Anita Dunn and Kate Bedingfield, sent a letter  to the heads of the major news and cable networks, as well as top news anchors, demanding that they refuse to book Presidential advisor Rudy Giuliani. It read in part,

“We are writing today with grave concern that you continue to book Rudy Giuliani on your air to spread false, debunked conspiracy theories on behalf of Donald Trump. While you often fact check his statements in real time during your discussions, that is no longer enough. By giving him your air time, you are allowing him to introduce increasingly unhinged, unfounded and desperate lies into the national conversation, We write to demand that in service to the facts, you no longer book Rudy Giuliani, a surrogate for Donald Trump who has demonstrated that he will knowingly and willingly lie in order to advance his own narrative…Giuliani is not a public official, and holds no public office that would entitle him to opine on the nation’s airwaves.”

Then the letter demands that if the former mayor is put on the airwaves, “an equivalent amount of time” be given “to a surrogate for the Biden campaign.”

Frankly, I still can’t believe Biden approved this, but of course, he must have. What’s going on here?  Incredibly, this: A former Vice President and current (though doomed) Presidential hopeful is asking the news media to actively censor a political critic. Continue reading

Policing Ethics, Part Two: When Those Expected To Stand Up For The Law Can’t Stand Up For Themselves

Cellphone videos of New York City police officers being doused with water while trying to do their jobs became an internet sensation this week, and an unsettling (but inevitable) controversy for New York City.  The officers were trying to disperse rowdy groups at fire hydrants during a three-day heat wave, and allowed themselves to be assaulted and humiliated while  crowds cheered the attackers on.

The police arrested three men who were caught on video hurling water at police in two incidents. This also caused controversy. “Why is a man facing more severe punishment for dousing a police officer than Officer Daniel Pantaleo is for choking Eric Garner?” asked a Times article. That shouldn’t be a difficult question, but you know—the Times. Eric Garner was a petty criminal resisting arrest. The officers were doing their jobs, and Garner died as the result of an accident, in great part because of his own actions in defying the police. The police were also trying to do their jobs when they were doused with water, in an act that threatens the peace and order of the community.

The Police Department’s highest-ranking uniformed officer, Terence Monahan, the police chief, lit the fuse on a larger controversy, saying,

“Any cop who thinks that’s all right, that they can walk away from something like that, maybe should reconsider whether or not this is the profession for them.We don’t take that.”

But they did take that, and the Mayor of New York wants them to take that, because the whole idea of law enforcement is now, and has often been, anathema to progressive ideology. Continue reading

Morning Ethics Warm-Up, 1/3/19: Morons, And More.

Good morning!

Still working on the appellee brief in my defense against the frivolous law suit by an angry banned Ethics Alarms commenter whose boo-boo I bruised. How do you write a professional, respectful, effective rebuttal of a 70 page brief that is basically nonsense? I know how to argue against a real good faith legal assertion–indeed, my enjoyment of brief-writing nearly got me stuck in the traditional practice of law. But “this is deranged crap that doesn’t constitute a valid appeal and that wastes the time of everyone involved” isn’t a professional response, just a fair one.

1. “You know…morons!” At least two people—I can’t find the link for the second one, but it was a child—were wounded when spent bullets shot into the air by New Year’s Eve celebrants fell back to earth and hit them. This happens every year. Why do people think shooting guns into the sky is safe? In WW II, my father had to promise a court martial for any soldier under his command who shot a weapon into the air.  This is basic Law of Gravity stuff, but it seems to elude an amazing number of gum owners. I’m only aware of one move that ever featured a death from a falling bullet: “The Mexican,” a failed 2001 Brad Pitt-Julia Roberts comedy.

2. “You know…morons!” (cont.) The Netflix horror hit “The Bird Box,” which involves a blindfolded Sandra Bullock leading her similarly burdened children on an odyssey to escape an apocalyptic threat that only strikes when it is seen, has spawned a web challenge in which people are encouraged to try doing everyday tasks wearing blindfolds. This prompted a warning from Netflix:

“Can’t believe I have to say this, but: PLEASE DO NOT HURT YOURSELVES WITH THIS BIRD BOX CHALLENGE. We don’t know how this started, and we appreciate the love, but Boy and Girl have just one wish for 2019 and it is that you not end up in the hospital due to memes.”

Boy and Girl are what Bullock’s character’s children are called, because she is so certain they are doomed that she doesn’t want to name them. I am tempted to say that anyone so stupid as to try this challenge should not be discouraged, because their demise will only benefit the rest of us. But that would be mean.

True, but mean.

3. Follow-Up…The Federalist has more on the unfolding Steele Dossier scandal. I do not see how any result of the Mueller investigation can hold up in court, no matter how much the mainstream news media spins it, with the degree of procedural irregularity and prosecutor misconduct we already know is behind it. Presumably this is why the focus has shifted to the extremely dubious theory that Trump violated election laws by paying off a sex partner, something he would have probably done whether he was running for office or not, and also a transaction that didn’t involve campaign funds. The media keeps reporting the latter as if it is an unquestioned crime (apparently because Michael Cohen was induced to plead guilty to it), but it just isn’t a crime, and I believe in the end that theory will be thrown out of court too. Continue reading

Fake News Watch: “Truth Isn’t Truth”

Okay, if “enemy of the people” is too strong, how about “incompetent and malicious professionals abusing the public trust by misleading and misinforming citizens for the purpose of destabilizing the government and undermining democracy”? How’s that? Better? But doesn’t such conduct make someone an enemy of the people? And it’s so much shorter!

I didn’t see the interview, but still knew immediately that Rudy Giuliani didn’t literally say and mean “Truth isn’t truth” as the news media was widely reporting yesterday. Rudy may have lost his edge, but he’s no idiot, and he is not going to fall into an “alternate facts” gaffe like Kellyanne Conway. If you didn’t know that with relative certainty, if you didn’t assume that the biased news media was intentionally trying to make Giuliani, and hence the Trump Administration, and thus Trump himself, inherently dishonest and ridiculous,  then you are gullible, dangerously ignorant of the complexity of language and the critical role of context, or stubbornly unwilling to accept what is res ipsa loquitur now, which is that journalism has become overwhelmingly partisan and cannot be trusted.

If one witnessed the interview with NBC’s Chuck Todd that produced the fake “gotcha!” and didn’t find that false representation outrageous, then one is simply a hopeless, principal-free “resistance” fanatic.

Here was the actual exchange: Continue reading

Lunchtime Ethics Warm-Up, 5/29/18: Lies, Boycotts, Boos, and More Lies

1. Update: We discussed earlier the accusations by former staff that Rep. Tom Garrett (R-Va.) had used his Congressional staff to perform personal tasks for him, his wife, and his dog. Now he has announced that he will not seek re-election, because he needs to deal with his alcoholism. As we know from many previous example, alcoholism is the go-to excuse for all manner of misconduct. In truth, it doesn’t make anyone misuse public funds, it doesn’t make anyone turn their staff into domestic help. This is a face-saving lie in most cases. In any case, good riddance.

2. Never mind football, what matters most is division and protest. DNC co-chair Keith Ellison actually tweeted this:

Yes, he is advocating a boycott of the NFL because the owners have decided that their ticket-purchasers should not be required to watch protests on the field before kick-off. Ellison and the other fans of making every aspect of American life a source of political discord believe that the protests, incoherent as they are, are more important than the games. He would inflict financial losses on a business for a completely reasonable policy, because it doesn’t further a progressive agenda. And, of course, those most harmed by a successful boycott would be the players. Continue reading

Morning Ethics Warm-Up, 5/11/2018: The Yankees Get Nasty, The Times Keeps Distorting, Rudy Is Sacked, And Dangerous Advice From An HR Expert

A lovely May morn to all!

1 As I have always said, the Yankees are evil. Most serious baseball fans,  and presumably all Baltimore Orioles fans, remember how in the 1996 ALCS play-offs,  a young New York Yankees fan named Jeffrey Maier turned what should have been a crucial out for his team into a game-tying home run by Derek Jeter in the 8th inning of Game 1, by reaching over the fence and catching the ball before it could fall into O’s rightfielder Tony Tarasco’s glove. This was interference, but it was before the challenge and replay rule, and the umpires, as is too often the case, missed the play. The Yankees won the game, the series and the World Series, and the Yankees and their city celebrated Maier as a hero—for, in essence, cheating on their behalf. The rules announced at the beginning of each game dictate that such conduct will result in an offending fan being thrown out of the stadium, but never mind: the ends justify the means, consequentialism, moral luck, double standards, hypocrisy…readers here know the litany. Misconduct was rewarded and extolled because everyone loved the result. New York, New York!

Now let’s go forward 22 years to last night’s tense game between the Yankees and their eternal rivals, the Boston Red Sox, also in Yankee Stadium (the new version.) The Yankees, as they had the previous two nights, rallied late against the hapless Boston bullpen and tied the game, 4-4, in the 7th inning. In the Sox 8th, J.D. Martinez hit a lazy fly that just got over the short right field fence and leaping gargantuan Yankees rightfielder Aaron Judge’s glove, into the outreached glove of another young fan, except that this one did not reach over the fence, and did not, as the replay showed clearly, interfere with Judge in any way.

Ah, but the home run he caught was hit by a Red Sox player, and put the Yankees behind in the game, after the fans’ hopes had been raised.

Yankee Stadium security hauled the fan out of the stadium.

The Red Sox won the game.

Good.

2. The Good Illegal Immigrant on stage…just to remind us of how pervasive false narratives are..I have kept an April 10 New York Times feature around just to raise my blood pressure in case I need a jolt. The article hails “Miss You Like Hell,” a new musical produced at Manhattan’s Public Theater. The show is about the pain and suffering endured by people who are in the United States illegally, having presumed to take what they want in defiance of our laws and policy, but no sense of wrongdoing is even hinted at in the story. The Times uses the deceitful cover-phrase “undocumented immigrant,” which was devised deliberately to blur the illegal immigration issue.

Today, as has been increasingly the case throughout the news media, a front page Times article uses “immigration” interchangeably with “illegal immigration.” This, of course, advances the lie that the those who oppose illegal immigration—that is, those who oppose law-breaking without consequence as national policy–are anti-immigrant.

This same story was headlined by the Washington Post, “Trump unloads on Homeland Security secretary in lengthy immigration tirade.” Continue reading