LAL #037 — Giuliani's Suspension: New York State's Newest Assault on the First Amendment

Law and Legitimacy

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The State of New York recently suspended Rudy Giuliani’s law license on an interim basis in one of the most shocking decisions I’ve read in quite some time. The court concluded, agreeing with bar regulators, that Giuliani posed an immediate threat to the public justifying an abrupt pulling of his license absent more formal hearings.

Why? He made false statements to the court, to the public and to the world about his client’s theory that the 2020 election was stolen.

His client? Donald J. Trump, of course. Lawyers do not have the right to speak as freely as do non-lawyers. There are rules of professional conduct that limit attorney speech. But this ruling makes a mockery of those rules. Did Giuliani knowingly make false statements to the court? Perhaps. But it was in the context of his advocacy; he was advancing his client’s theory of the case.

He did not mislead the court as to case law, which indeed is the Cardinal Sin for lawyers. He was guilty of inconsistency and over-promising in argument about what he could offer as evidence. That’s a common failing. If the trial judge thinks he over-stepped a boundary, that judge can impose sanctions.

But suspension months after the case ended on grounds of protecting the public? There are pig sties in upstate New York that smell better than this. There are two (2) other claims from the State: (i) that Giuliani made false statements to third parties when he appeared on television, the radio and elsewhere; and (ii) that Giuliani behaved in a way that led regulators to doubt his fitness to practice law. This is risible. Lawyers are free to speak to the public. The only professional limit is on speech carrying a substantial likelihood to prejudice a public proceeding. Giuliani did nothing of the sort. This is cancel culture in judicial robes and it is terrifying. I doubt these same regulators are chomping at the bit to disbar the young lawyers accused of throwing lit Molotov cocktails during a BLM protest. Appeal, Rudy. Take it all the way to the Supreme Court.

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