Rudy’s Problematic Public Punishment Doesn’t Fit His Crimes 1

The suspension of Rudy Giuliani from the practice of law by a New York appellate court panel was a major judicial statement about the grave danger Donald Trump’s big lie about the 2020 election poses to the nation and its democratic system. It may also have been futile and potentially unconstitutional.

At issue are limits the First Amendment places regulating lawyers’ speech outside the context of court proceedings, including bald-faced lies like those Giuliani has repeatedly told to the American people in the months following the election, as well as whether the mechanism of lawyer discipline is an effective way to address such wholesale lying to the nation.

Politically, the problem here is that the abrupt suspension of his license to practice in New York State, even before a hearing where he could present his defense, helps support his phony claims about a supposed “deep state,” “Democrat” conspiracy against him and his client, Trump. Contrary to the wise counsel of W.S. Gilbert and Dee Dee Ramone, the punishment here does not appear to fit the crime.

The government has substantial power to regulate the speech of lawyers, when lawyers’ speech is related to their practice of law. For example, in Gentile v. State Bar of Nevada, the Supreme Court ruled that a lawyer can be disciplined for making an improper public statement about a pending case in which they represent a party, when the statement is substantially likely to materially prejudice the proceeding, reasoning that such misconduct can impair the integrity of the justice system.

The Supreme Court has not, however, ruled that a lawyer can be disciplined for publicly lying about a case in which she has not appeared; neither has the court ruled that a lawyer can be disciplined for publicly lying about their own case under circumstances that are unlikely to prejudice the outcome of the proceeding.

On that background, the case of Rudy Giuliani, who has spent months shamelessly lying, is trickier than it might appear at first blush.

Giuliani is a professional, and highly successful, prevaricator; but his lies rarely have much to do with courtroom advocacy; and they consistently had no apparent impact on the outcome of the election cases, which Trump consistently lost.

Rudy is not much of a lawyer these days. Rather, he’s a public mouthpiece for mendacity.

While Giuliani has long capitalized on his record as mob prosecutor–and professed to be always acting as Trump’s lawyer in the wake of the election –it is exceedingly difficult to meaningfully distinguish between what Giuliani and Trump himself were doing in the wake of the election: that is, saturating the air waves with pernicious lies.

In that regard, Giuliani is unlike many of the lawyers who are facing potential disciplinary consequences for their roles in Trump’s effort to overturn the election, because Rudy is not much of a lawyer these days. Rather, he’s a public mouthpiece for mendacity.

Rudy does not really litigate cases anymore. Following the election, he made one appearance on Trump’s behalf in a Pennsylvania courtroom because nearly all of the other lawyers on the case had resigned. Giuliani embarrassed himself in the process; he was clearly unaware even of the claims the Trump campaign was advancing, repeatedly asserting that the campaign had a claim for fraud when it did not. (The New York court suggested that Rudy calculatingly lied to the Pennsylvania judge; but that is actually a charitable account of his obvious incompetence and confusion.)

In its opinion, the New York court gave a thorough account of the broad tapestry of out-of-court lies Rudy has peddled since last November regarding the election. Reading the court’s comprehensive account provides a bracing reminder of the sheer scope of the falsehoods Giuliani proffered to the nation, which have included everything from unsubstantiated claims that as many as 30,000 dead people voted in Philadelphia, to the wildly false claims that Georgia’s voting machines were being systematically manipulated, and that as many as 165,000 underage people voted in that state.

Giuliani was thus a reliable front man for Trump’s relentless disinformation campaign against democracy, which was transparently calculated to destroy the confidence of a swath of the public in the outcome of the election, a task in which Rudy and Trump dramatically succeeded.

Large numbers of GOP voters now believe that Biden won the election by cheating; and even the few GOP officials who have rejected Rudy and Trump’s big lie are nonetheless advocating for remaking state election laws to favor Republican voters, on the ostensible ground that those who believe Rudy’s lies need to be “reassured.”

Therefore, Rudy did his repugnant job, well; but his job was not ever to convince judges of the merits of his lies, but rather to confuse the public and undermine democracy. That makes Giuliani a problematic case for the remedy of a public suspension of his law license, premised on the need to protect the legal system.

Initially, apart from Rudy’s single confused appearance in the Pennsylvania courtroom, all the false statements that the New York court identified as bases for his potential disbarment occurred in non-judicial settings, most often in press conferences and during TV, radio and podcast appearances, or the occasional appearance before equally wacky state legislators.

While the New York court emphasized Rudy’s own assertion that these appearances were part-and-parcel of his legal representation of Trump, that assertion, like most everything Rudy says, is of dubious veracity.

Furthermore, as I have explained, the Supreme Court has not ruled that the First Amendment permits every lie a lawyer tells in public to be the subject of lawyer discipline. To the contrary, there is a strong argument that there must be a showing that a lawyer’s public mendacity must have a nexus to a case in which the lawyer is representing a client, and that the lie poses the risk of materially prejudicing the case. The New York court repeatedly decried the damage Rudy’s lies worked upon the nation and its citizens, stating that “each of the false statements identified and analyzed herein were made multiple times on multiple platforms, reaching countless members of the public.”

And it found that the impact of those lies on the public has been grievous: “The seriousness of respondent’s uncontroverted misconduct cannot be overstated. ….. False statements intended to foment a loss of confidence in our elections and resulting loss of confidence in government generally damage the proper functioning of a free society.” The court went so far as to credit a contention that Giuliani’s lies may have “directly inflamed tensions that bubbled over into the events of January 6, 2021 in this nation’s Capitol.”

Those claims may, in fact, be true. The pernicious impact of the big lie perpetrated by Rudy, and his client, Trump, is hard to overstate. But the question remains whether such cynical and calculated lies, transparently directed at misleading the public, not a court or jury, are the proper subject of lawyer disciplinary proceeding, even assuming that the First Amendment permits such relief?

The New York court suggested that the answer is yes because, “[w]hen … false statements are made by an attorney, it also erodes the public’s confidence in the integrity of attorneys admitted to our bar and damages the profession’s role as a crucial source of reliable information.” If one takes this rationale seriously, however, then any false statement by a lawyer, whether or not related to their legal practice, would be fair game for suspension or disbarment.

Furthermore, the New York court did not treat Giuliani’s as a normal case of attorney discipline. Rather, the court took the extraordinary step of publicly suspending him from the practice of law, on a temporary basis, before there has even been a hearing on the charges brought against him.

Absent that suspension, the public would not even have known about the existence of the disciplinary proceeding against Rudy for many months, if at all. Such proceedings are normally maintained in secrecy unless, and until, there is a final determination against the lawyer facing charges of ethical breach.

Immediate suspension orders are usually issued in cases where a lawyer has been convicted of a felony–or stands charged with actions like stealing client funds–such that the court concludes that clients would be endangered if she continued to practice.

In Giuliani’s case, the court reasoned that a suspension was in order, in part, because Rudy constitutes “a continued risk of immediate harm to the public,” given that he continues to go on radio shows and podcasts to lie about the election.

Giuliani’s “persistent and pervasive dissemination of … false statements in the media,” long after any of the election cases he was involved in have terminated, merited an immediate suspension of his license to practice, the court reasoned.

This leads directly to the question of futility. The New York court has succeeded in making a public statement of reproach against Giuliani. But what, beyond the making of that declaration of opprobrium, has actually been accomplished?

Certainly, the world has not been saved from Giuliani’s falsehoods. In fact, now that he has been suspended from the practice of law, Giuliani is free to tell more lies to the public about the election, or indeed any other matter, without fear that his lies will be counted against him in his still ongoing disbarment proceedings–since he’s no longer acting as a lawyer, but rather appears to be making his living selling gold and pillows during radio appearances. Indeed, the suspension itself may well generate sympathy for Giuliani among Trump supporters—and feed their conspiracism about the “deep state”—even as Giuliani faces the far more serious prospect of criminal charges.

The court did identify a grave evil, for which Rudy, among other Trump cronies, is responsible: “espousing false factual information to large segments of the public as a means of discrediting the rights of legitimate voters” and convincingly argued that such lies are “corrosive to the public’s trust in our most important democratic institutions.”

But the court may not have made a convincing case for its claim that such lies to the public, when made by a person with a law license, “warrant interim suspension from the practice of law,” or indeed that such a judicial action will actually do anything to prevent such lies from being disseminated again by lawyers, let alone by the many non-lawyers. some holding public office. who are engaged in just the same sorts of disinformation attacks on our democracy.