The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.
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.
