by Mitch Kokai
Senior Political Analyst, John Locke Foundation
This week, New York’s Supreme Court took the extraordinary step of suspending Rudy Giuliani, former federal prosecutor and counsel to former President Trump, from practicing law. As a long-standing critic of Giuliani for his baffling, self-defeating and at times bizarre statements, I found the action was, on some level, reaffirming.
However, the fluid standard applied in Giuliani’s case raises serious concerns over how and when such suspensions will be imposed against lawyers in public controversies. Indeed, the Giuliani standard would seem to implicate a wide array of attorneys who straddle the line of legal and political advocacy.
The 33-page opinion is damning and embarrassing; in all likelihood, it will result in Giuliani’s eventual disbarment. It also is deeply concerning in its heavy reliance on Giuliani’s statements out of court. While lawyers have been disciplined for out-of-court statements in some cases, this suspension seems primarily a judgment on Giuliani’s public advocacy. The court states that when he uses “his large megaphone, the harm is magnified.” …
… Such rhetoric leaves the impression that the investigators and the court itself were eager to impose judgment on Giuliani for the Capitol riot and other unrest through a bar action. In an actual case for incitement, such a causal connection would be rejected by any court as a violation of free speech. …
… The New York court brushes over the free speech implications of its ruling with a conclusory statement that Giuliani knowingly misrepresented facts, even though it did not afford him a hearing on that or other questions.
It is not enough to declare “Don’t be like Giuliani.” What is missing in this opinion is a clear standard for when the failure to establish a case — as Giuliani failed to do with his election fraud claims — is a disbarring offense.