Symbolic disbarments
The legal profession has a huge problem with basic honesty. Disbarring politicians who don't practice much law anyway doesn't do anything about the problem.
This past week, the New York court system issued an interim order suspending former New York Mayor (and former US Attorney) Rudolph Giuliani from practicing law, based on his conduct during the 2020 election litigation.
There’s no doubt that state bar ethics codes prohibit dishonest conduct by lawyers. Rule 4.1 of the ABA Model Rules, which many state bar codes are based on, says that in the course of representing clients, a lawyer’s statements to third parties must be true, and indeed, also requires lawyers to disclose unfavorable material facts where ethically required. Model Rule 3.3 also requires lawyers tell the truth in court proceedings.
There’s also no doubt that these restrictions are almost never enforced. Every civil litigation lawyer has a story about this. I have many, but maybe the best example was the first true “big dollar” case I worked on in private practice, a dispute involving the revenues generated by a number of hit movies. In that case, the two opposing lawyers through much of the case were thoroughly dishonest. They’d agree to something in a phone conference and then sign a declaration in court denying it happened. They would say documents did not exist in discovery that were later discovered. They were constantly misrepresenting the holdings of cases in motion hearings. (This last one is particularly pernicious, because busy trial court judges, unlike appellate judges, don’t have the time to read all the cases or enough clerks to do all the reading for them. So they rely on the lawyers to tell them what the law is.)
The key point is while these lawyers were mildly sanctioned on occasion (and their client was significantly sanctioned once), they were following client instructions and there was no commensurate remedy for what they were doing. State bars do not like to do things that interfere with lawyers’ ability to “zealously” represent their clients. Neither do trial judges, who generally make you “climb the sanctions ladder”, from a warning, to a small monetary award, to a bigger monetary award, to evidence preclusion, and finally to termination of the lawsuit/a default judgment, and who generally accept even wildly implausible explanations to avoid sanctioning lawyers.
And this is just in court. When you get outside court, into the world of press releases and demand letters and leaks to favorable journalists and everything else that goes on in high profile cases, it’s basically the Wild West. Nobody ever gets sanctioned or punished for anything.
Given this context, New York’s action against Rudolph Giuliani is kind of laughable. It goes in a category with the decision to strip Bill Clinton of his bar license after he committed perjury in the two Monica Lewinsky cases. In both cases, an aging politician who wasn’t going to be practicing much law anyway was suspended for violating bar rules in the context of a political controversy. I did, back in the day, support the disbarment of Clinton, mainly because of my frustration that he could receive no punishment at all for his blatant perjury (no, I did not then and do not now accept the notion that it’s OK to lie in court as long as it is about sex). But I have to concede that Clinton’s defenders had a very reasonable argument that the punishment was political and symbolic- there was little chance that Clinton would ever work as a lawyer again, and even if he did, the fact that he lied to protect himself in the Paula Jones and Lewinsky matters did not really bear on his fitness as a lawyer.
The point is, what we actually need state bars to do is uphold a standard of honesty and dedication to the truth in the legal profession. Yes, we are spin artists; yes, we have the right to hold the other side to their burdens, enforce waivers and forfeitures, and use other legal means to protect our clients. But when we cross over from spinning to lying, it should meet with sanction. And lawyers who repeatedly do this should not be rewarded with more paying clients, but with a disciplinary action from the State Bar.
And I don’t think the suspension of Giuliani’s law license moves us any closer to this ideal. Instead, it allows New York officials to preen about how much they care about honesty in the court system, while doing nothing about the actual problems.