Rudy's First Amendment Right to Lie to the Press

The Bar does not have authority to regulate all aspects of an attorney's speech.

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I have long been a critic of ABA Model Rule 8.4(g). This regime would empower the state to regulate an attorney's speech that is not connected to any judicial forum. Specifically, the Bar could discipline a lawyer for dinner-time conversation at a bar function, or potentially impose liability for a contentious debate topic. Much of my argument is grounded in the First Amendment. This rule imposes an overt form of viewpoint discrimination. Moreover, phrases like "demeaning" are unconstitutionally vague. However, I have also advanced a parallel argument: the Bar lacks the authority to regulate all facets of an attorney's existence. These state agencies are chartered for specific purposes: the regulation of the practice of the law. The Bar is not roving a commission to impose some progressive sense of civility.

This background brings me to the situation affecting Rudy Giuliani. Recently, the Appellate Division (First Judicial Department) temporarily suspended Rudy's license to practice law. The per curiam decision offered this summary:

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).

I understand that schadenfreude is enticing. People enjoy seeing misfortunes fall on Rudy, Sidney Powell, and the rest of the Krakenbrigade. I get it. Still, we all have the responsibility to defend the rights of those we vigorously disagree with–even Rudy.

Here, I write to praise an Op-Ed by Professors Bruce Green and Rebecca Roiphe in the Washington Post. They are not MAGAphiles. To the contrary, they call out Rudy's lies about the election. But they recognize the dangerous, and chilling precedent the New York courts have set. Kudos to Green and Roiphe.

The opinion states:

This disciplinary proceeding concerns the professional restrictions imposed on respondent as an attorney to not knowingly misrepresent facts and make false statements in connection with his representation of a client.

This category resembles the catchall in ABA Model Rule 8.4(g): conduct related to the practice of law. You now see what this expansion of authority is so pernicious.

Green and Roiphe explain that the gravamen of the suspension was based not on statements in court, but statements to the press.

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. For the most part, the court focused on Giuliani's public statements and justified its interim suspension by citing the risk that Giuliani would continue disseminating "false statements in the media" while the disciplinary process ran its course.

And lawyers retain their First Amendment rights when speaking to the press:

In Giuliani's case, the court gave the First Amendment concerns short shrift, because the case was about his professional improprieties "in connection with his representation of a client." We agree that courts have the right to enforce rules requiring lawyers to be truthful to protect the integrity of a court proceeding or the wellbeing of a client. But it is hard to see how either of those are at issue here . . . .

And that right includes the right to lie about the government:

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.

Well said. Here, the courts did not rely on potentially defamatory statements--an issue that is currently being litigated in other courts.

If the ACLU or the NYCLU has said anything about this issue, please tell me; I haven't seen a peep.

On a personal note, it is still difficult for me to fathom Rudy's fall from grace. I grew up in the 1990s on Staten Island–the borough that helped put the Republican into office. Rudy was a giant. He was well-respected by everyone I knew. He made cameos in movie and TV shows.  He was an icon! I still remember when Rudy visited my 4th grade class with his then-wife, Donna Hannover. After September 11, Rudy became a titan of a leader. His regular press conferences brought calm and stability during a hectic time. The sky was the limit for him. Alas, over the past two decades, things have changed.

Update: An earlier version of the post stated that Rudy was not disciplined for anything he did in court. There is one allegation concerning his statements made to a Philadelphia federal court, detailed on pages 11-14, that I had missed.

NEXT: When Barr Broke with Trump

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  1. This is a good, sound article, and addresses a real problem with New York’s bar regulations. Yet I feel I must assert that Giuliani, like most of the Republicans in the country, still honestly believe that the election was stolen from Trump.

    The case against Giuliani — and the upcoming cases planned against Trump’s companies and organizations — are politically motivated persecution, just like the “Russian collusion” hoax and the “Steele dossier” hoax before them. The fact that our once trusted major news media openly lied to help the Democrats advance these persecution campaigns discredits them forever.

    1. It’s worse than that — it’s prosecution for thought crimes.

      The allegation isn’t that Rudy allegedly lied, but his alleged motive for doing so.

      No, you either go after every lawyer who lies and disbar half of them (likely more) or you don’t — you can’t pick and chose as to motives…

      1. “The allegation isn’t that Rudy allegedly lied, but his alleged motive for doing so. ”

        No, the allegation is exactly that he lied: “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.”

        1. You haven’t quoted anything alleging that Rudy knew the statements were false.

          1. The appellate court’s opinion recognized that only “knowingly” false statements were sanctionable. It explains in some detail why it concluded that he knew many of his statements were false. Among other things, he repeated them after learning they were not correct.

            1. Here’s a link to the opinion for those who want to learn what the court actually said, rather than what someone who hasn’t read the opinion thinks it said: http://www.nycourts.gov/courts/ad1/calendar/List_Word/2021/06_Jun/24/PDF/Matter%20of%20Giuliani%20(2021-00506)%20PC.pdf

            2. “The appellate court’s opinion recognized that only “knowingly” false statements were sanctionable. It explains in some detail why it concluded that he knew many of his statements were false.”

              Fair enough, thank you. I’ve been reading it, but as my comment said, I was only addressing the quote that purported to show that the statements were lies.

          2. This is a pretty pedantic point, but even on those grounds it doesn’t work well…

            https://www.merriam-webster.com/dictionary/mislead

            1. You’re the one claiming to provide evidence that he knowingly lied.

              1. Well, me and Blackman I guess, right? But even apart from that there’s evidence he did that.

          3. And Rudy provided no evidence he thought they were true. He made a lot of claims about who and what he relied on yet failed to provide anything supporting his claims. And like Dennis says, Giuliani repeated the claims long after his “facts” were corrected. Being unable to keep most of his lies straight and consistent didn’t help either.

        2. Queenie is a partisan hack, not to mention a scary clown.

          1. Idiot’s imbecilic insult!

            1. Can you say that fast in Ebonics?

              1. Intolerant Idiot’s Infatuation!

                1. Everyone can be prosecuted. Lend me your laptop an hour. I can get you years in federal prison and $millions in fines. That is true down to toddlers. All prosecutions are discretionary and selective. This one is just a hit job by NYC Democrats. It should be done to them.

                  It is not zealous. It is adequate representation for defense lawyers to do full e-discovery on the people trying to destroy the client, the prosecutor lawyer filth, and the scumbag judge. Get all their devices and do forensics. For example, all the embedded child porn gets referred to the FBI for how it got there. Any scumbag defense lawyer fail to do full discovery on the enemy, and that is reversible error. No scumbag lawyer is doing that. It owes its job, not to the client, but to the prosecutor. Get fired by the client, replace in an hour. Deter the prosecutor, lose your livelihood as a piece of traitor filth.

      2. Ed2,
        Read the court’s opinion, if you still remember how to do that.

        1. Queenie has never shown any evidence of any legal understanding, let along any training.

          1. Behar’s Benighted Broadcast

        2. Read the court’s opinion, if you still remember how to do that.

          Says the thought-free cut-and-paster.

          Now watch him immediately flip from bully mode to victim mode. 3….2….1….

          1. What I like about someone like Brian is that in rushing to defend the ever so careful and thougtful poster Dr. Ed 2 against the ‘thought free’ Don Nico he nicely demonstrates how uber-partisans need only one standard in life.

            1. in rushing to defend the ever so careful and thougtful poster Dr. Ed 2

              And there’s the ever-reflexive Queenie, straining to find hidden meaning where none exists.

              Donny is a blowhard bully. That remains true no matter who he’s addressing at any given moment.

              I understand that may be a difficult concept for the hopelessly tribal. But I’m pulling for you.

              1. Blowhard bully?
                Lol, show us on the doll where Don hurt you, Brian.

                1. Brian hurts all over like the spineless jellyfish that he is

              2. Dude, Ed got the decision completely wrong. You went in with empty insults to defend him

                You don’t need to defend Ed; you don’t need to call people names and offer nothing else.

                1. No, weirdly enough I think he actually needs it.

                  Partisanship does strange things to people.

                  1. Nocomprende. Say it in your mother tongue. Your comments are barely literate. They show you attrnded Democrat jurisdiction schools.

                    1. “they show you attrnded Democrat jurisdiction schools.”

                      Lol.

                2. Queenie does need to do that. It attended schools in a Democrat jurisdiction. That is where it was taught to insult the mother of the opponent in Ebonics.

      3. Not thought crime, election advocacy. It is totally crass.

    2. Giuliani and most political types understand that the election was fair and that the former President lost. They know politics and understand vote counts. They are attempting to sell a idea to a gullible group of people. You will notice that most will say that Joe Biden is the President. If they talk about the election it is in vagaries that will not leave them painted into a corner.

      1. Believing that the election was honest, and that there was fraud, are two different things. There is more than one way to steal an election. You can do it as effectively by rigging the rules with last minute ad hoc changes, as you can by inserting or deleting votes fraudulently.

        If Democrats had wanted Trump supporters to think Trump had genuinely lost, they shouldn’t have been so insistent about changing so many rules, and doing it by irregular means. Honest elections aren’t just elections without fraud, they are also elections where the rules were followed.

        1. You can do it as effectively by rigging the rules with last minute ad hoc changes, as you can by inserting or deleting votes fraudulently.

          And how did the last-minute changes constitute “rigging?”

          Were Republican voters not allowed to mail in their ballots, for example?

          Your position seems to be that making it easier to vote is somehow unfair to your side. Here’s a clue: It’s not. What is unfair is having rules that, in the absence of signs of fraud, make it selectively harder to vote.

          1. Brett’s complaint is largely about Pennsylvania, and maybe Michigan anyway.

            Attempts to change the rules in Wisconsin were shot down by the Wisconsin Supreme Court. The entire political apparatus in both Arizona and Georgia is Republican.

            So even if you assume the rule changes in Pennsylvania and Michigan were unfairly partisan AND that they had sufficient effect to swing the election despite all evidence to the contrary, that’s still not enough to change the election result since giving both of those states to Trump still results in a 2 vote win for Biden in the electoral college.

            1. There were also local violations of election laws in some other very close states, which might have been enough to change the outcome. But, yes, Pennsylvania and Michigan were the most egregious cases.

    3. That is the lesson of Rudi and of PRIDE. Forget the law. Forget marches. Forget the courts. Smash shit.

      1. They did at the January 6th insurrection.

    4. It was stolen for Trump, but not because of voter fraud. It was stolen because tens of millions of illiterate mestizos and other mental inferiors were made citizens against the will of the American people.

    5. Is there a way to get the press ‘disbarred?’ They have been pretty much lying about everything for 4 plus years

      – Russia, Russia, Russia
      – Hunter did nothing wrong
      – Joe didn’t know what Hunter was doing
      – Ukraine, Ukraine, Ukraine
      – MORE RUSSIA
      – Vaccine before election was IMPOSSIBLE
      – WHAT RIOTING????
      – Layfette Park

      I’m pretty sure you could fill an issue of the NY Times with their lies – Oh wait…….

    6. Reason needs more Josh Blackman and less (if any) Jakob Sullum.

  2. Indeed Rudy used to be a giant. He played a pivotal role in the work of Giovanni Falcone and Paolo Borsalino to bring the Corleonese Mafia to the maxi-trial in Palermo in the early 90’s. That action had significant negative on the NY Five families.

    How the mighty have fallen!

    1. Rudy took on vicious, serial murderer, organized crime enterprises. He did a great job helping NY get rid of them. This time he is taking on the Democrat Party backed by the tech billionaires, and by the Chinese Commie Party, not to mention the horrible, vicious media. Legal maneuvering is not enough. They have be charged, attacked. Seize their assets, put them in prison.

      1. Ridiculous Rube’s Rudy ra-ra Rant!

        1. Are you actually denying Giuliani’s fruitful efforts against organized crime?

            1. There’s something seriously wrong with this guy.

              1. At least, I can compose a simple sentence in English. You are barely literate.

                1. At least, I can compose a simple sentence in English.

                  All evidence to the contrary: “All PC is case.”

              2. QA, allow me to join the chorus of those saying you’re not helping.

                Not that you’re encouraging him; his motives are clearly largely internal.

                I have this guy blocked. I don’t have you blocked. But at this point like 70% of your posts are contentless reactions to a guy who himself offers not useful content.

                Just block him and be done with it. Plenty of other targets for mockery on this blog these days!

                1. Agreed. I’ve got him blocked which mostly makes it easy to pretend he doesn’t exist, but all the responses actually just clog things up and don’t add any more value that Behar does. Just block him and let him scream into the void.

                  1. He’s a bit nuts, but I have a certain sympathy for his viewpoint, after my divorce. My ex messed up my finances, but it was my own lawyer who saw to it I was ruined financially by an uncontested divorce without any complications at all.

                    Those lawyer jokes aren’t totally divorce from the reality.

    2. I think it just goes to show that Trump Derangement Syndrome is indeed a thing and while I’ll be the first to admit that it affects some people on the left, it’s had a pretty widespread effect on the right as well.

  3. We don’t actually know if he “lied” because there has never been a comprehensive investigation into the allegations of voter theft. It was just all nicely swept under the rug, dubbed the “Big Lie” by the media, and “job well done sirs” the left said.

    Rudy is being punished for taking on a politically unpopular case and faced the vast opposition of the institutional left. “Contempt of the elite” is not a crime (yet) but that is why he is being punished.

    1. Contempt of the elite, lol. In conservative world the former US Attorney of NY and NYC mayor is a brave populist persecuted by the elites. As always, when conservatives use this term it just means ‘someone that thinks what I think is dumb.’

      1. Conservatives elites love complaining about the elite. That is how they pretend to relate to working class voters.

    2. There have been more investigations into this election then any in history. The only thing that was swept under the rug was the Rs concept of facts.

      1. Talk about the Big Lie, right there is one.

      2. Yeh – but the first actual hand count and ballot inspection (by the AZ senate) will likely be released tomorrow (Mon, 6/28/21). Most of the previous “recounts” involved the same people who originally counting the ballots, recounting them, again, often in secret. The rest of the “proof” involves courts finding creative ways to dismiss cases, and ignore sworn affidavits.

        1. The fact is that the counting is a pretty well established process. Most of us still use one, two, three, ect.. The fact is that counts were done but numerous people and numerous machines and these showed consistent results. There are already quality assurances and auditing required. We will see what Cyber Ninja’s come up and assess at that time. Should they come up with a significantly different number for the counts they will have to explain that difference.

          It is worth noting that while the Wisconsin Legislature is under considerable pressure to do something like AZ, the leadership is resisting. They have acknowledged that the count has been checked and rechecked and is unlikely to change.

          1. The fact is that the counting is a pretty well established process.

            Which is precisely why lefties are soiling themselves over the AZ audit: they’re not just adding the same numbers together again: “lookz — they still match!!!!1one!”

            Should they come up with a significantly different number for the counts they will have to explain that difference.

            Yup, I fully expect that will be front and center in the results. And I also fully expect you won’t accept that explanation, no matter what it is.

            1. We all know that if there were a close election certified to the GOP and a Democrat legislature ordered a pro-Democrat group to come in and ‘audit’ it folks like Brian would totally not be soiling themselves!

              1. “Yo momma.” Deep.

                1. It’s not nice to talk about your momma’s deepness Brian, she did raise you and all.

                  1. Good boy.Now we can umderstand you.

        2. “The rest of the “proof” involves courts finding creative ways to dismiss cases”

          Projection is a hell of a drug…

    3. That isn’t correct. Read the court’s opinion. He didn’t just assert that there was fraud or that the election was stolen. He made specific statements that he presented as fact that were in fact totally false. http://www.nycourts.gov/courts/ad1/calendar/List_Word/2021/06_Jun/24/PDF/Matter%20of%20Giuliani%20(2021-00506)%20PC.pdf

      1. But he didn’t make them in court (For almost all of the statements referenced). He made them in public.

        It’s really scary and chilling what’s going on here.

        Think about Stacy Abrams. She made multiple statements about potential Fraud after the 2018 Georgia election in public.

        Should her law license be revoked?

        1. Some of the statements were in court (U.S. District Court for the Middle District of Pennsylvania). Others were made to legislative groups in Arizona, Georgia, Pennsylvania, and Michigan while they were investigating the election. Stacy Abrams was wrong in her assertions, but unlike Giuliani she did not make those statements in the course of her legal representation of a client. Had Giuliani made the same statements as a private citizen rather than in the course of his representation of Trump, as many other people did at the time, there would have been no basis for discipline.

          1. Dennis,
            I wonder if many of the people here defending Rudy are morons, or if they simply don’t understand this obvious distinction. If Rudy was a private citizen (even though he’s obviously also a lawyer), then no one would have a problem with him lying. I mean, no problem in regards to possibly losing his law license. It’s the fact that he was deliberately lying while acting in his capacity as a lawyer that makes his dishonesty so troubling.

            [On the other hand; lawyers lie in public all the time. See every press conference for a notorious defendant: “My client is entirely innocent of these charges and the witness against my client will never repeat her scurrilous lies in front of a jury.” is often a deliberate lie, coming from a lawyer who knows that he’s telling a lie. But we don’t sanction lawyers for these sort of things, right? So, I am troubled a bit by this. The fact that Rudy is a lying, repulsive, sack of shit should not factor into my analysis. But it does, I have to admit…and not to my credit.]

            1. It’s the fact that he was deliberately lying while acting in his capacity as a lawyer that makes his dishonesty so troubling.

              On the other hand; lawyers lie in public all the time. . . . But we don’t sanction lawyers for these sort of things, right? So, I am troubled a bit by this.

              Interesting how your second paragraph fully swallows your first. One might reasonably wonder why you left it in. Is it sort of like the obligatory throat-clearing “now let’s be perfectly clear — I think Trump is a blazing twat, BUT…”?

              1. Brian,
                I left it in because I’m genuinely conflicted about this. I don’t at all think it’s an easy issue. I see merits on both sides, and I waver between both positions.

            2. There is a big difference between saying “My client is innocent” and My client is innocent, and that guy is guilty”, as least when you know that guy is, in fact, not guilty.

              I think we have something similar here, where Rudy was accusing various actual people of tortious and/or illegal acts, rather than making more general claims.

              1. Ridge,
                I don’t buy that distinction. Your client is accused of killing her husband for the inheritance, and your theory of the case (that you know to be untrue) is that one of the kids actually did it. Of course you will, in your press conference on the courthouse steps, announce, “Not only is my client innocent of this heinous crime, but we will show that his children did it.” (Or, if you’re a bit more careful and circumspect, you say, “…and we will show that, actually, his children were the ones who benefited most from his death.”). Making these false accusations is pretty common…there’s the risk of exposing your client (or yourself) to a civil claim later, but not the risk of sanctions from the Bar.

                1. No sane defense lawyer who is not a character in a Hollywood production would ever say, “but we will show that his children did it.” That would be the height of incompetence as a lawyer.

            3. Both good points–there’s an obvious distinction but it’s unclear whether that makes punishing lawyers for lying a good idea.

              To expand on your second point: if a lawyer’s client can lie, and the lawyers is trying to zealously represent them, shouldn’t the lawyer at a minimum be able to tell a story consistent with the client’s? (Which seems roughly like what happened here.)

          2. There is a SINGLE mis-statement identified in court. Just one. In the entire complaint. Over exactly what was the nature of the complaint. In the U.S. District Court for the Middle District of Pennsylvania.

            So, you’re going to revoke someone’s law license over a single mis-statement, that was corrected, in court? Really?

            This is a political hit job. It’s abundantly clear. If you can’t see that….I can’t help you.

            1. From the decision:

              Respondent’s mischaracterization of the case was not simply a passing mistake or inadvertent reference. Fraud was the crown of his personal argument before the court that day. In his opening remarks, respondent claimed that the allegations in the complaint concerned “widespread, nationwide voter fraud of which this is a part….” He persisted in making wide ranging conclusory claims of fraud in Pennsylvania elections and other jurisdictions allegedly occurring over a period of many years. Respondent argued that the plaintiff’s fraud arguments pertained to the canvassing claim, notwithstanding that there was neither a fraud nor a canvassing claim before the court. Respondent’s fraud argument spanned pages 12 to 31 of the transcript.

              Characterizing this as a “SINGLE mis-statement” is misleading in my opinion.

              1. It’s all part of the same mis-statement. If it could be characterized as that.

                Let’s give an example. In the OJ Simpson civil trial, the lawyers repeatedly say that OJ’s actions were criminal, and that he killed his wife, so their clients deserve recompense.

                The court says…”Is this a criminal complaint?” The Lawyers say, “No, it’s not criminal, it’s a civil complaint”.

                Do the lawyers deserve to lose their license over such a misstatement?

        2. Think about Stacy Abrams. She made multiple statements about potential Fraud after the 2018 Georgia election in public.

          Should her law license be revoked?

          Stacey Abrams said a bunch of stupid, petulant stuff about the election. Can you identify a single actual false statement she made? (Hint: she whined that voters were deleted from voter rolls, not that there was “fraud.”)

          1. Did she provide any REAL court-verified evidence for her claims of voter suppression? No.

            1. You mean, did anyone wait until 8 months after a critical event to make statements, in order to hold off until a court made a factual finding??? Really…that’s your standard?

              1. Apparently that’s the standard you want to hold Rudy to.

    4. We don’t actually know if he “lied” because there has never been a comprehensive investigation into the allegations of voter theft.

      Yes, there have.

      Moreover, Rudy was given the opportunity to show how his statements were true, and of course could not.

      1. “Moreover, Rudy was given the opportunity to show how his statements were true, and of course could not.”

        Thousands of lawyers have uttered the following words in court. “My client is innocent”. And thousands have had that proven wrong.

        Your “standard” would revoke the law licenses for every one of them.

        1. Um, no. First, every person actually is innocent, until convicted. Second, even if you weren’t operating under a misunderstanding of what innocence is, the accusation is that not that Rudy said something which later turned out to be incorrect. The accusation is that Rudy said something knowingly false.

          1. David. Please, stop humming. It’s annoying. Aren’t you a lawyer? You don’t know anything. Your knowledge of professional responsibility is appalling.

          2. Even AFTER people have been declared guilty, before a court of law, lawyers will argue their client is actually innocent. Typically during appeals.

            There is literally a program called “Innocence Project” that does this. Says their clients are really innocent, despite being convicted as guilty.

            https://innocenceproject.org/

            1. You’ve been on this blog long enough to know you pedantry is off-point.

              The assertion my client is innocent is not deceiving the court.

              Rudy wasn’t making a pro-forma thesis statement before a legal argument; he was just lying.

              1. There is zero evidence that Rudy was “deceiving” the court. The court knew exactly what Rudy meant.

                This is a political hit job designed to punish people who have socially undesirably views.

                1. OK, so you haven’t actually looked into the proceedings, you just want to rage partisanly about what you’ve made up in your head.

                  Go off.

                  Or read any of the links people in this thread have provided to the actual allegations, the supporting arguments, and the complete lack of rebottle.

                  1. I’ve looked into it at depth. It’s clear you haven’t. The court knew EXACTLY what the complaint was about.

                2. Though I do notice you’ve pivoted off your dumb pedantry thesis to go somewhere that relies more on delusion than feigned ignorance.

    5. LOL. Other than the recounts, the audits, the decisions by Trump-appointed judges who reached the merits of cases and concluded that there was no evidence of fraud.

      The absurd part of this is that you need to not only believe that somehow things went so wrong as to produce the wrong result, leaving apparently no evidence in the process and all in states with Republican control of some or all of the political branches, but you have to believe it happened in at least three different states. Sure, maybe let’s conspiracy up some Chinese ballots in Arizona or complain about rule changes in Pennsylvania, but somehow you’ve got to convince yourself that all of this happened again and again and yet no one’s been able to produce any meaningful evidence of it whatsoever.

  4. Another example of the misuse of the law for partisan political attack. We are sick of this toxic profession. It must be crushed to save our nation.

    1. Cooky Crank’s Crazy Comments!

      1. Queenie. How do you celebrate PRIDE? No doubt your family is just bustin’, bustin’ with pride.

        1. Tell us about all the fabulous people you met up with, and what you did together.

          1. Ignorant Incel’s Intense Interest!

              1. Ridiculous Racist’s Retort!

            1. Don’t egg him on. And aid him in hijacking the thread

              1. The Don. Not a lawyer. Have a blessed day.

  5. “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…”

    How, exactly, is this different from the corporate defense attorney defending an unpopular corporation, the government attorney defending abusive police officers, or the defense attorney defending a “clearly guilty” client?

    How is this different from Monsanto’s claim that a farmer illegally planted genetically engineered/patented corn because of what they found growing in a highway drainage ditch?

    1. How, exactly, is this different from the corporate defense attorney defending an unpopular corporation, the government attorney defending abusive police officers, or the defense attorney defending a “clearly guilty” client?

      It’s different in that those people didn’t knowingly tell provable lies in the context of those representations.

      Anyone who has more than about one week’s experience with you here as a commenter, Dr. Ed, knows that you don’t know the difference between truth and lies. But they are different things.

  6. “Alas, over the past two decades, things have changed.”

    Yes, they have. Lots of democrats have “been elected”, and the corporate side of fascism has been given free reign. Riddle me this, Batman; how can it be wrong to tell a lie to the press, when all they publish is lies?

    1. Lots of democrats have “been elected”

      The quotes tell us all anyone needs to know about your politics. In your mind Democratic officeholders are by definition illegitimate.

  7. Nope, First Amendment doesn’t protect one’s lying unprofessional behavior from discipline for violation of professional standards. Those are still a thing.

    1. Your comment begs the question. Up to what point is an attorney’s behavior regulated by “professional standards,” and at what point is his behavior subject to the same regulation as every other citizen. It has been the rule that everything an attorney does in life is subject to regulation.
      In this particular case, I agree with the comment below that this was more than just talk to the press, it was talk to the press connected with Court representation. So that might well have influenced the Court.
      Suppose, however, that Giuiliani had not represented Trump in any court proceeding, nor provided him any legal advice in connection with the election. Trump just used him as a mouthpiece to talk to the press and spread disinformation. Should that subject him to professional discipline? I am very dubious about that.

      1. “It has NOT been the rule . . .”

      2. It’s interesting that you accuse me of begging the question because I didn’t take into account your imagined hypothetical.

    2. Did Obama lose his bar card for lying about how our health insurance premiums would go down???

      1. Obama most likely believed that to be true at the time he said it, but even if it was a lie, was it a lie in his capacity as a lawyer?

      2. He lost his bar card prior to getting elected. I would like to read the file on him and on Michelle Obama, also disbarred. Never mentioned by the press.

        1. Not mentioned because it never happened.

          1. Neither Barack nor Michelle Obama was disbarred. Ever. This is just more easily refuted lying by Republicans, conservatives, clingers, and ‘libertarianish often libertarians.’

            1. They surrendered their bar cards voluntarily. Perhaps, they no longer needed them. They saved $100’s on CLE.

              1. Lol, Lunatic’s Lies Layed Bare!

      3. You either don’t know what you are talking about or are bullshitting about this. Either way, I am SHOCKED!

        1. No speak. Can you say that in Ebonics?

          1. Crazy Cuckoo’s Campaign!

  8. Isn’t the constitutional rule on out of court statements by lawyers the one set forth in Gentile v. State Bar of Nevada? I would expect a post on this issue would at least discuss it.

    Under Gentile, statements to the press by lawyers regarding pending litigation are unprotected if they are substantially likely to materially prejudice an adjudicatory proceeding. Now maybe Giuliani’s were not likely to do that. But it seems to me that you need to at least apply the controlling Supreme Court case on this issue if you are going to blog about it.

    1. You are asking too much of them.

    2. I was thinking of that too.

      The Appellate Division opinion does cite Gentile, but NOT the standard you cite. It just cites general statements about how a lawyer’s First Amendment rights are less in some situations. It does not even mention the concept of prejudice to Court proceedings. (Given that all of these cases involved injunctive relief determined by the bench, I doubt how much that would be a factor anyway).

      So while your criticism of Blackman is well-deserved, you should spare some of that for the court.

      1. FWIW, I can imagine a statement meeting the substantial likelihood of material prejudice standard even in a proceeding where there was no jury.

        For instance, what about a press campaign to discourage a witness from testifying? Or to rile up a mob at the courthouse?

        It’s obviously applicable to MORE statements when there’s a jury, but it can still apply to statements made when the Court is trying a case.

        1. Those are certainly possible in the abstract, but not here.

          Point is the Appellate Division neither cited nor applied the Gentile standard, even though it cited that case. So that is pretty poor adjudication, whatever one thinks of Prof. Blackman.

      2. “So while your criticism of Blackman is well-deserved…”

        I’m not sure it’s fair to get on Blackman for not addressing an argument that nobody’s making. The court seems to be saying that the statements are unprotected because they are allegedly false, not because they are likely to prejudice a tribunal.

        1. Blackman’s a law professor, praising an article for identifying First Amendment issues relating to the order suspending Giuliani, and fails to even discuss a controlling Supreme Court case that answers a number of points in his post.

          1. I hope, when Prof. Blackman applies for employment at good law schools, he appends posts like this one to his application.

            1. Prof. Blackman could be a billionaire once he decides to give up this most expensive hobby, academia.

            2. Ah, yes, the empty ad hominem that adds nothing of substance to the discussion.

              Par for the course for Kirkland.

              Here is a tip. You think Prof. Blackman is a mediocre legal thinker? Don’t read his posts. It’s still a free country. For now.

              1. I believe in accountability.

                No free swings.

                Shill for Rudy Giuliani and Donald Trump, be held to account for it.

                (At a handful of downscale law schools, this weak material would constitute a strong credential.)

          2. Professor Blackman’s assertion of a First Amendment right to knowingly lie during the representation of a client is weak sauce. The authority he cites is limited to an op-ed. One would expect some discussion of actual legal authority such as decisional law on point.

          3. “and fails to even discuss a controlling Supreme Court case that answers a number of points in his post.”

            Who says it’s controlling? As I said, nobody, including the court imposing the penalty, is claiming that Rudy’s statements were intended to influence a tribunal (except for the one about the fraud claim). Why do you want Blackman to address an argument that nobody in the case is making?

            1. I bet you Giuliani’s attorneys are making it, and the US Supreme Court says it is controlling.

          4. I have no doubt that Josh would go further to say that the First Amendment fully protects a law professor’s right to frame arguments about what the First Amendment ought to protect in a misleading way, meant to obscure the extent to which the argument cuts against controlling Supreme Court precedent.

            Josh is a liar. It’s no wonder he’s defending the right of other lawyers to lie.

    3. Maybe I missed it, but I didn’t see anywhere in the complaint where they are claiming that Rudy’s statements where substantially likely to materially prejudice an adjudicatory proceeding.

      1. Sorry, the opinion. There’s no finding to that effect.

        1. And there need not have been any

    4. One footnote in the opinion seems to give away the real thinking:

      “Notably, at least one Federal court has recently determined attorney efforts to undermine a legitimate presidential election warranted the attorney’s referral to the grievance committee”

      The problem that seems to have irked the Appellate Division was not trying to influence the various courts (which would not care anyway what was said in the press), but that he was trying to influence a national election. Is that protected by the First Amendment? Needs more discussion than what this court did.

      1. There is a difference between trying to influence an election and trying to undermine one.

        1. Does that matter under the Gentile standard?

          1. I have no idea.

  9. Suppose the attorney for a defendant charged with a serious and well publicized crime tells the press:

    My client is innocent of all charges. He is confident he will be vindicated by a jury of his peers and looks forward to a speedy trial.

    However, the attorney has evidence that is unavailable to the prosecution but will likely come to light before trial that proves his client is guilty beyond a shadow of a doubt.The attorney has also had extensive discussions with her client. In those discussions the lawyer has told the client that their only hope is to reach a plea bargain before the “bad” evidence comes to light. The client has told the attorney that he’s terrified of going to trial and wants her to do everything she can to reach a plea bargain.

    Since the attorney made knowingly false statements to the press (but not to the court and not under penalty of perjury) about the case and her client, would she be subject to also being disbarred under the “Rudy Standard”?

    1. No, standards are applied selectively based on culture war strategy.

    2. Is the attorney (D) or (R)? We now need to know to determine legality of speech.

    3. Take a real case in the converse — the Chovin trial.

  10. As a Professor of Constitutional law one would think that Prof. Blackman would know that the free speech issue and free speech protection is limited to government attempts to limit speech, not private actors. And the New York Bar is, as far as we know, a private organization who can do whatever they damn well please with respect to speech, even if their policy is ill founded and wrong.

    So with respect to Rudy’s membership in the bar and his ability to practice law, he has no Constitutionally protected right of free speech. And if individuals such a Prof. Blackman wish to attack the New York Bar’s policies, they should do so under the guise of incorrect policy or policy with which they disagree. To conflate the censoring of Rudy with a Constitutional right that does not apply in this case is wrong.

    In fact, not only has no government agency or anyone tried to stop Rudy from prattling on with his lies, he has been given a huge platform, Fox News and other media outlets with which to spew his lies. It’s hard to find many public figures whose freedom of speech has been more protected. But the legal profession, maybe wrongly, has taken on the role of policing its own. And if they do not want a scurrious liar who is fomenting insurrection against a lawfully and legally elected government practicing law, well it seems they have the right to make that happen.

    And for the record, we do not remember conservatives mightily protesting when Bill Clinton lost his ability to practice law. The credibility of the so-called conservatives would be a lot greater if they applied their standards even handedly.

    1. You once again show yourself to be completely ignorant of the facts. In NY, the bar is administered by the courts, a branch of government. The opinion which suspended him was rendered by the Appellate Division of the NY Supreme Court. Same appellate court that hears criminal and civil appeals.

      And, the licensing of the practice of law in NY (and everywhere else that I know of) is a public function. If Giuiliani were to now practice law, he would be guilty of the crime of unauthorized practice of law.

      1. Right. Even if a state bar were set up as a purely private corporation, the disciplining of lawyers, no matter how carried out, is subject to constitutional scrutiny.

    2. Clinton lost his license for committing perjury, a felony, in the course of a court proceeding.

      1. I supported the disbarment, but to be fair, there’s a reasonable argument to be made against what happened to Clinton’s law license. He WAS perjuring himself, but he wasn’t practicing as a lawyer when he did it, and the connection to his law license (which he probably was never going to use again anyway) was pretty tenuous.

        1. For disciplinary purposes, I don’t think it is relevant whether he was acting as a lawyer or not. Perjury is “illegal conduct that adversely reflects on the lawyer’s honesty, trustworthiness or fitness as a lawyer” and would also count as “engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation.” Those are NY rules, but I’d be surprised if Arkansas’ were not very similar.

    3. The suspension order was sought by the Attorney Grievance Committee for the First Judicial Department of New York, not by “the New York Bar” or any other private organization. The order was granted by the New York Supreme Court’s Appellate Division. Simply reading the order before criticizing the post would have shown the state action at issue. http://www.nycourts.gov/courts/ad1/calendar/List_Word/2021/06_Jun/24/PDF/Matter%20of%20Giuliani%20(2021-00506)%20PC.pdf

    4. 1: Isn’t the NY Bar a “state actor” because of its state-granted authority to issue and revoke a STATE license?

      Conversely, could the NY Bar disbar all Republicans (or lawyers who’ve had an abortion) with impunity because it is a “private” entity?

      Methinks that when this is all sorted out, when the inevitable litigation is pursued to its end, the Bar (in general) is going to get its arse kicked — lawyers do not run this country, at least not yet, and voters can do things en masse beyond the expectations of the establishment. Anyone remember California Prop #13?

      1. Ed,
        Disbarment is an action of the Appellate Division of the Court not of the Bar Association. The grievance against Rudy was made by a formal committee of the NY State Courts.

        The Bar is not getting its arse kicked? Who is going to to the kicking of the Appellate Division of the Courts of NY?

    5. In determining and administering the rules for being an officer of the state’s courts, a public office, the Bar Association is acting as an agent of the state, not a private actor.

      Delegating a core public function to private actors doesn’t eliminate state responsibility. It may, however, mean the Bar Association doesn’t get qualified immunity.

      That said, I think a state has a right to prohibit an officer of the court trom making false statements about a client’s case. I’d agree that things like making general denials of a client’s guilt are protected. But repeatedly asserting the existence of conspiracies by identified parties that have no basis whatsoever in fact is not.

      1. You people in your quest to allow lying just don’t get it. This was not an action by a state entity punishing speech. It was an action by the legal profession, that operated technically through a court, to set standards for the practice of the legal profession. No one, absolutely no one, tried to suppress Rudy’s speech. Of course that lack of action was not altogether altruistic, letting Rudy speak does more to destroy the lies of the Trumpers than any action by the press, editorial writers or MSNBC

        1. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.

          “Unless it is to say that Orange Man Bad.”

        2. Doubling down on ignorance just makes you Dr. Ed.

          This was an action by a state entity. There is no “the legal profession.” And of course operating “technically” through a court is operating through a court. This was an action by the courts of the state of New York to set standards for the practice of the legal profession.

        3. Sidney,
          What are you trying to wease out of using the word “technically.”
          The Appellate Division of the Supreme Court operates both de jure and de facto to regulate the profession in the State of NY.

    6. And the New York Bar is, as far as we know, a private organization who can do whatever they damn well please with respect to speech, even if their policy is ill founded and wrong

      The “New York Bar” (actually the New York State Bar Association) is indeed a private organization. Which is why it has no regulatory authority of any sort in the state of New York. It is just like the YMCA, the Rotary Club, or the PTA: you can join if you want, but all that does is get you a monthly newsletter and access to their fitness center.

      Being a member has nothing whatsoever to do with a law license in the state of New York. In the state of New York, lawyers are regulated by the state courts. Which of course are bound by the constitution.

      1. “access to their fitness center.”

        The NYSBA has a fitness center? News to me.

  11. I don’t see how one plausibly makes the claim that the bar can’t discipline someone for dishonest statements made in one’s capacity as a lawyer. If the theory that a lawyer has a First Amendment right to lie while acting as a lawyer, would that also protect lawyer perjury? Or making false statements to judges?

    At the end of the day, the legal profession runs on the presumption that people are telling the truth, which it can only do if there are harsh sanctions for not telling the truth. So any First Amendment claim strikes me as a complete non-starter.

    1. You too are begging the question. Is talking to the press considered acting “in one’s capacity as a lawyer?” That’s what is at issue here.

      1. And there is that little thing called “evidence” which appears to have been omitted. Heaven forbid we deal with little niceties like that…

        1. No; the fact that evidence was omitted was precisely Rudy’s problem. He omitted any evidence whatsoever to support his claims.

      2. When a lawyer talks to the press about a client’s case, the lawyer is absolutely acting in his capacity as a lawyer.

        Are you suggesting a lawyer is free to reveal confidential information about a client’s case to the press? If his obligation to tell the truth doesn’t extend to talking to the press, surely his obligation to keep his client’s confidences doesn’t either. Why would the two be handled differently? If the First Amendment protencts one, surely it also protects the other.

        1. When a lawyer talks to the press about a client’s case, the lawyer is absolutely acting in his capacity as a lawyer.

          Who says? You? He is not representing his client in court, nor is he advising his client. He might be subject to discipline if he is trying to prejudice an ongoing proceeding. That is the Gentile standard.

          Apart from that, not at all clear to me that such is acting as a lawyer.

          Are you suggesting a lawyer is free to reveal confidential information about a client’s case to the press? If his obligation to tell the truth doesn’t extend to talking to the press, surely his obligation to keep his client’s confidences doesn’t either. Why would the two be handled differently? If the First Amendment protencts one, surely it also protects the other.

          The two are not remotely analogous. If a lawyer receives a confidence from a client, he has to keep it confidential no matter the capacity he is speaking. He can’t reveal the confidence at a cocktail party to entertain his friends, even though it is clear that such chatter is not acting as a lawyer.

          The professional ethics concern is the receiving of confidence in a professional capacity, and the failure to keep that confidence, regardless of the capacity in which the lawyer may have revealed it.

          In the Giuiliani case, the charge is lying. Not every lying by a lawyer is or should be the subject of discipline. There has to be some connection to the legal representation or acting as a lawyer. There might well be that in the Giuliani case, but that is not obvious, given the Gentile standard.

          1. Well, the only reason he was on camera is that he was speaking as Trump’s lawyer.

          2. “He has to keep it confidential.” But the whole premise of your comment is he’s only subject to lawyer’s restrictions on speech if he’s acting in the capacity of a lawyer. If, when talking the press he’s not acting in the capacity of a lawyer, he’a not subject to a lawyer’s restrictions on speech. Only a person actung in the capacity of a lawyer is subject to bar rules to keep confidential information. It’s a bar rule limiting speech. If you think that a person not acting in the capacity of a lawyer is not subject to bar rules limiting speech, and you think a person talking to the press about a client’s case is not acting in the capacity of a lawyer, it follows that you think a person talking to the press about a client’s case is not aubje to the confidentiality bar rule.

            There is an obvious connection between talking to the press about a client’s case and representing the client. The connection is the same for both lying and disclosing confidences.

    2. So is it “dishonest” to tell a jury your client is not guilty when he you know darn well he is guilty?

      1. The Supreme Court has long held that a general denial of a client’s guilt is simply not the same thing as perjury.

        1. Give Democrats enough time, and they’ll fix that pesky problem, too.

      2. If a lawyer tells the jury, “I know for a fact that he’s innocent,” that would be actionable for multiple reasons. If the lawyer says, “My client vigorously denies the charges and looks forward to demonstrating his innocence,” that’s probably fine. I trust you can see the difference in those two statements without me having to explain it to you.

        1. You’re too trusting.

  12. Ed,
    Read the judgement of the Courts and then debunk it point by point…
    or stop your whining

  13. There was one instance where his in court speech was cited, his inconsistent statements about whether a case involved election fraud. In my opinion, that was not sufficient for emergency disbarment.

    1. There was no “emergency disbarment,” or disbarment of any other kind. His license was suspended pending a final determination.

  14. Things that have not been explained:
    -Shredder trucks parked outside of ballot counting locations.
    -Dead of night obvious dumps of Dem ballots in major cities that were 100% for Biden
    -The mysterious suitcases….
    -Double votes in CA/NV

    And the list goes on and on….

    1. It’s very hard to explain shit people make up.

      1. Nice response.

      2. Jimmy the Dane is engaged in something called the Gish Gallop.

        TL;DR: Conspiracy theorists just announce as many arguments as they can as fast as they can and declare that they’re victorious unless you disprove each one of them — no matter how little evidence there is for any of the arguments or how significant they are. It takes much more time to figure out what the arguments even refer to, and then marshal the facts to refute them, than it does to invent and throw out dozens more. (And that optimistically assumes that they’ll accept a refutation no matter how well substantiated.)

    2. Jimmy, you forgot to mention Bigfoots love child with Elvis. I’m sure that has something to do with it too.

      1. And such strawmen don’t help your case….

        1. What? That has still not been explained!

          I mean, really Jimmy, I think you’re just bullshitting now as a few minutes of google would reveal these wacky theories were long debunked.

          The thing is, Trump and his supporters totally discredited their claims so frequently. He/they cried fraud months *before* the election, when the election happened he/they engaged in immediate claims that were so laughably ludicrous that they equated to ‘how could my football team have lost when they were ahead at halftime?’, and then for months they just went from one crazy claim/theory to another which is what those desperate for an excuse do.

          Trump, the guy who won a very close election and who, by his own admission, had the deck stacked against him b/c he was outspent, faced a hostile media, the pandemic, etc, etc., lost a close election. This isn’t something that needs rapid fire clutching at straws conspiracy theories to explain.

          1. Tbh decrying fraud before an election is nothing new. My wife was an observer for Democrats in Obama’s first election. She was to watch for irregularities like people harrassing votors, then call a roving lawyer if she saw anything.

            Once it became obvious he would win, they declared the elction fair and sent them home.

            But the prep work for attack lawsuits had to be made.

            1. Such a new problem!

              https://youtube.com/watch?v=9iMy0969BTw

              Remember, this movie was talking about an even earlier era.

            2. Having the President do so is a pretty new twist.

            3. Um, preparing for fraud or election irregularities is fine. Trump, in contrast, announced that the election was fraudulent before it had even occurred.

        2. Jimmy, try liking the stuff you posted. And then we’ll have something to find out was nonsense.

          Versus just throwing out claims and then all we have to do is mock you.

          1. Yeah I’m going to trust an internet search engine that has advertised it rigs the results for anything election related…..

            1. So you reject any attempt to validate your nonsense.

              That’s how you get to crazytown.

              1. Wow, that’s an old one.

                https://www.youtube.com/watch?v=PqiZ_gryYUQ

                Oh, you said CRAZYtown, not FUNKYtown.

          2. ‘Versus just throwing out claims,’ plenty in your in-group use this as their primary tactic.

    3. The shredder doesn’t make sense because the totals need to match in the recount, or if the ballots are gone when the recount happens they don’t count.

  15. I think the professor’s comments are probably correct. I wonder, though, whether “course of representation” includes not just lying to the public, but also to his client. Certainly lying to your client is a breach of fiduciary duty, and is conduct that can result in discipline, even if it is a lie your client wants to hear. It would seem that would be especially so, when it also generates fees for the attorney. It is like a quack promising a cure for useless expensive treatments. One can contrast Rudy’s conduct with that of Barr, who told Trump that there was no evidence that would justify overturning the election. It seems Rudy told him the opposite.

    So a situation that may be here, but has not been claimed or proven, might be akin to a corporate general counsel who never appears in court, but advises his client to engage in litigation on a factual basis that is untrue, and makes numerous public statements out of court touting that false basis. While the primary onus would fall on the attorneys in court, I think the GC would be subject to discipline as well.

    It is possible the Rudy told Trump “our chances are slim to none in court because we can’t prove a thing, but let’s ride this political horse for all its worth.” That is what 1st Amendment defense of Rudy’s actions assumes, and it is a good defense because it has not been proven otherwise.

    There is some evidence that Rudy may not have advised Trump “We don’t have a legal leg to stand on, and the evidence is flimsy, to say the least, but I will be happy to promote it as a political matter, but not to a court.” When Rudy was in court he made the opposite claim. He was quite willing to say that there was fraud. True, he withdrew the statement because that suit did not allege fraud, but that does not change the fact that he claimed there was fraud to the court. The withdrawal was because the suit did not make that allegation, not because he acknowledged there was no fraud to allege. [And, seriously, if you are not at all familiar with what a suit is alleging, but go to court and make false pronouncements about it, you are a danger to the legal profession and the public, though I think an isolated incident, timely corrected and apologized for would warrant no more than private censure. Repeated incidents like that (chronic and egregious lack of preparation, resulting in misrepresentations to tribunals) could support a suspension. (I’ve done a fair amount of professional responsibility work).] Still, the in-court statement is arguably some (but perhaps insufficient) evidence that he lied to his client about the election.

    1. think the professor’s comments are probably correct. I wonder, though, whether “course of representation” includes not just lying to the public, but also to his client. Certainly lying to your client is a breach of fiduciary duty, and is conduct that can result in discipline, even if it is a lie your client wants to hear. It would seem that would be especially so, when it also generates fees for the attorney.

      Lying to one’s client can get one disbarred. Simply giving bad advice to one’s client cannot. (Though it can certainly be grounds for a malpractice suit.)

      1. Well, if Dominion is correct that Rudy lied with actual malice (i.e. reckless disregard for the truth or falsity), then he lied to his client and that question of fact can be determined in a disciplinary proceeding. In other words, it would not be a legal misjudgment, but a falsehood.

  16. These were powerful, effective lies. Lies told by the President’s attorney. To the nation, destabilizing lies.

    Every attorney upon admission swears to abide by and defend the Constitution. “Constitution” means “this constitutes our government; this is our structure: legislative, executive, judiciary”. Giuliani did not to this.

    1. Every politician elected also swears to support and defend the Constitution. Should they all be removed from office for lying in the course of their duties as elected officials? And also for campaign promises they know they won’t be able to keep?

      I think they should. I also think Rudy should be disbarred. But I also think that every attorney who lies to the press, public, or courts should be disbarred.

  17. I have been watching legal disciplanary process for many years. I can’t recall any lawyer being suspended before lots of process and then generally 9nly for steal8ng m9ney for clients.

    Lawyers lie all the time about the facts of their cases.

    Can anyone point to a similar circumstance?

    1. That is the core problem.
      If this is worthy of suspension and disbarment, then there are a lot of other circumstances that should be. I’ve seen news reports of outright fraud, clear and transparent lies, and deliberate harassment being given mere fines.

      It doesn’t take a genius to see that this is a political prosecution.

    2. Didn’t you take legal ethics? Plenty of examples of lying to the tribunal being sanctioned there.

      1. I am not a lawyer, so not legal ethics for me.
        But I’ve never seen a lawyer disciplined before a full hearing nor for merely lying.

        1. *You’ve* never seen, I believe. That’s not very probative, though, is it?

        2. He wasn’t disciplined yet.

  18. “On a personal note, it is still difficult for me to fathom Rudy’s fall from grace.”

    On a personal note from me, it is not at all difficult for me to fathom Josh’s decision to plant a dagger in Rudy’s back, despite the fact that the two were peas in a pod throughout the Trump years. No honor among conscience-free hypocrites, I guess.

  19. You’re basically wrong, as usual. Even I know that the bar is especially concerned about the public perception of the profession. My understanding is that a lot of the rules like this one — don’t knowingly lie to the public in connection with your advocacy — are about keeping the profession professional. The public already has intense antipathy towards lawyers.

    So it’s wrong to say that the only legitimate interests here are protecting the integrity of the court and the wellbeing of the client. Protecting the reputation of the profession is also legitimate.

    Perhaps there are policy concerns with that stance, since it does constrain what could be valuable speech by lawyers. But the First Amendment seems far off. Why would speech to a court be less protected than speech to the public? The bar clearly has the authority to curtail licensed lawyers’ professional speech as a condition of license.

    Lawyers’ private speech may be a different story. But I don’t think there’s any serious question that the speech at issue was connected to Rudy’s representation of Trump. It doesn’t matter that he was speaking to the public through the media rather than through the court.

    1. “But the First Amendment seems far off. Why would speech to a court be less protected than speech to the public?”

      Y

      1. (Apologies for the one-letter reply earlier- my browser freaked out when I started typing)

        “But the First Amendment seems far off. Why would speech to a court be less protected than speech to the public? ”

        You already explained why: one is made to a Court, the other is made to the public. The public interest in debate- even about a court case- is stronger than the courts’ interest in “keeping the profession professional.”

        This isn’t even a close call. The First Amendment might be curtailed in specific, limited ways, but a blanket muzzling of an attorney’s speech to the public is clearly overbroad, especially when that speech is about a matter of great public importance.

        Imagine, if you will, the government disbarring the attorneys suing it for “lying to the public” about the matter that they are raising the suit over! (It doesn’t take much of an imagination because it just happened to Rudy)

        1. But it’s not a blanket muzzling of attorneys’ speech to the public. It’s only attorneys’ professional speech to the public (and then only when it’s knowingly false).

          If Rudy really felt the need to say those things, he is free to do so — and remain a lawyer — but he needs to drop Trump as a client first, or otherwise make it clear that he’s speaking for himself, not his client. Here, it’s not even in question, he was speaking as Trump’s lawyer.

          I’ve read the opinion. At no point does it veer off into other random false stuff Rudy’s said publicly, of which there is plenty. It’s specifically about his official Trump advocacy.

          1. If Rudy really felt the need to say those things, he is free to do so — and remain a lawyer — but he needs to drop Trump as a client first, or otherwise make it clear that he’s speaking for himself, not his client. Here, it’s not even in question, he was speaking as Trump’s lawyer.

            Or he could have done so, and remain a lawyer, by saying those things in a lawyerly way, instead of a ranty-Fox&Friendsguest way. “We’re concerned about reports about such-and-such, and we insist that it be investigated…” vs. “Such-and-such happened and the election was therefore stolen!!!!!!!!!”

            1. I don’t know if you realize it, but what you posted is an indictment of the legal system. So long as you wrap your lies in legal hedging and pomposity, you are off the hook? One would think that plain talk should be encouraged.

              (I agree with Bill Barr that the whole “election was stolen” thing was pure bovine excrement. But how one says it should not matter.)

              1. And so ‘careful writing’ and ‘careful speaking’ are added to the list of things right-wingers disdain, joining credentials, education, expertise, reason, and experience.

              2. Are you honestly claiming that “hedging” — such as truthfully saying that something might be true rather than falsely claiming that it is true — is to be discouraged? That it’s just a matter of style (“how” one says something) rather than substance?

  20. I thought the distinction is the difference between going out in public and lying your face off vs. going out in public on behalf of your client and lying your face off? The latter being why Rudy is sanctioned and the former being why Lin Wood probably won’t be.

  21. Dershowitz:
    “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,” Dershowitz outlined. “I mean, 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.”

    “The idea of holding lawyers to this standard of truth-telling when they’re on television is a whole new ballgame. It will chill free speech. It will chill advocacy,” he added.

    https://www.breitbart.com/clips/2021/06/27/dershowitz-on-giuliani-law-license-suspension-equal-justice-for-all-mortally-wounded/

    1. Don’t worry, it’ll only be used against Republicans, like so much else of Democrats’ lawfare.

    2. It is certainly understandable why Dershowitz would be chilled by the notion of having to tell the truth.

  22. Blackman’s criticism seems overwrought. The allegations of lying are, at present, uncontroverted. Lying, making knowing misstatements of fact to a court is not protected speech, and the wrong is done when the lie is made to the court. There is no free speech issue there. ‘In the course of representation’ looks well-enough defined — it is part of the analysis of attorney client privilege claims. None of Giuliani’s statements are subject to discipline if he is not acting as a lawyer, i.e., representing a client, when made. Discussed at more length here: https://ciceronianreview.typepad.com/ciceronian_review/2021/06/rudy-at-half-time.html

    1. If a lawyer was lying to a *court*, then disbarment is absolutely justified.

      The problem here is that Rudy was disbarred for lying to *lawmakers* and the *public*.

      1. And the court. They also said he lied in court.

        1. And yet they included the public statements as the chief reason for his disbarment.

          It’s almost as if he’s being punished for his public statements.

  23. Nearly all responsible, experienced, professional Republican lawyers recoiled from Trump’s ‘stolen election’ lies and courtroom circus, declining to participate in or endorse the subprofessional mendacity.

    Rudy Giuliani and Josh Blackman, however . . .

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