Rudy Giuliani has been suspended from practice pending the completion of the a disciplinary investigation. The suspension is based on Giuliani's knowing misstatement of fact to a court and many third parties and on knowing misstatements of facts to third parties made during the course of representation of Trump. The temporary suspension is based on uncontested facts, i.e., Giuliani offered no basis for treating the allegations as disputed. Page 5. Bare denials do not create a dispute. Page 19. He had the opportunity to offer evidence that would counter the elements of the charges, in particular evidence that his statements were not knowing misstatements. Giuliani chose not to. What he did instead was aver that there was such evidence, somewhere or other, but not offer it. The tribunal treated those claims as they should have, as not responsive. With the factual allegations uncontested, the question was whether the requested temporary suspension was warranted. Not having any contested facts made that determination a good deal easier. Giuliani is suspended, but it should be noted that the proceeding is not concluded. He can come back to the tribunal with the evidence he says exists a so challenge the charges against him.
There is commentary that the disciplinary proceedings, including and in particular the temporary suspension, violate Giuliani's free speech rights. See Blackman and Green & Roiphe, for examples. I do not think that argument succeeds, and I am unsure the advocates see the implications for Giuliani's defense should the first amendment argument carry forward.
There is no significant doubt that the speech of lawyers in the context of representation of a client can be controlled, that their speech rights are limited in this context. It is mostly a matter of litigation (although the rules apply across all forms of representation). And here at least one court appearance is involved. That count asserts that Giuliani knowing made misstatements in an oral argument (again, uncontested). There is no doubt at all that this conduct is subject to discipline, both by the judge to whom the statements were made and by the appropriate bar disciplinary process, independently of any sanction or discipline by the judge. Lawyers do not have as a legitimate option lying to the court. It is likely that the criticisms of the temporary suspension rest on the other allegations, but one final note on this point. That Giuliani later corrected the misstatements is only a mitigation. the offense is knowing misstatement, i.e., lying. The violation is completed when he lied, and he is properly subject to sanction whether he voluntarily corrects the lie or not. There is no first amendment issue involved in discipline for lying to a judge during a court proceeding. The rules of civil procedure and inherent powers of the courts have long been immune from that sort of challenge. Indeed, there could not be a rule against perjury if lying in court was acceptable.
So limit the objections to temporary suspension for lying to third parties. (Actually, those lies are mostly, but not exclusively, the lies to the court which were publicly available during the hearing and heard by several thousand people.) It is important to keep in mind here that the it is uncontested (at this point) that Giuliani lied, that is what knowing misrepresentation is, lying. That takes it out of normal advocacy, expressions of opinion and puffery that is a normal part of litigation. Giuliani asserted that, e.g, more absentee ballots were returned than sent out, and that George Foreman was a listed voter. That is not saying 'my client is innocent', it is asserting as facts things known to be false. Now, true that civilians (for lack of a better word) can make such statements without legal repercussion. And lawyers too, when they are acting as civilians, can offer up such assertions. They are as free to lie as others when they act as civilians. But Giuliani was not acting in a civilian capacity, he was making these statements as part of and in the course of his representation of Trump. That also is not contested, at least at this point. Constraints on the speech of professionals acting in that capacity are commonplace and widespread -- consider the regulation of speech of doctors in the context of reproductive health treatment and consultation.
Blackman purports concern over the scope of 'in the course of representation', that the phrase may be or is too vague for disciplinary purposes. That seems to me an ill-considered critique. The phrase is not unique to this context. The scope of attorney client privilege is partly defined by or responsive to just that delineation. Privilege attaches to communications in the course of representation (other factors are needed as well). There is body of cases and law describing what the phrase means in that context, so we are not at sea with respect to 'in the course of representation.' What lawyers say and do in the course of representation is regulated in other ways. A lawyer may not make statements contrary to the client's interests, the lawyer may not disparage the integrity if the client, in the course of representation, or disclose confidential information without permission of the client. These do not seem to be serious First Amendment problems.
If these restrictions are problematic, what to make of attorney client privilege? More specifically, if Giuliani's statements at issue here were not made in the course of representation, then he was not representing Trump when he made the statements. And strongly suggests that Giuliani and Trump do not have an attorney client relationship, at least as to these statements and Giuliani's doings at the time. So communications between Giuliani and Trump are not privileged during the period, at least some of them. That is an outcome that would be surprising to Giuliani, to Trump, and to the critics of the temporary suspension.
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