Ciceronian Review

Formalism and Realism: Law

Reading commentary on SB 8 I have not found any discussion of the effect of abortion service providers closing in Texas.  Perhaps I read too narrow a selection of legal commentary sites.  Perhaps something else.  Whatever the explanation, I have been waiting for a discussion of what happens, is in fact happening, to women denied access to abortion while the judicial process walks along its circuitous path and whether the nature of the effect matters or should matter to whether the circuitous should be followed.  Unwanted pregnancies will be continued, and children consequent will be born.  What of that effect?  Is there a way that burden can be ameliorated after the fact?  I have not thought of a similar problem for other constitutional rights. Maybe that is a limitation of my imagination, maybe this is unique (or nearly so).  It seems to me that this effect -- unwanted pregnancies compelled to continue and consequent children -- should matter a great deal to the way the judicial processes should work here.

Surely the law will be fully tested in just a matter of weeks, one might think.  First, a matter of weeks matters a good deal here as that pushes some unwanted pregnancies too far out under current law.  Second, why think this will be resolved in a matter of weeks.  The Fifth Circuit has made plain that it will uphold any regulation of abortion.  Surely those judges and their minions can see ways to delay resolution of any appeal.  Set a regular briefing schedule, sit on the decision, etc.  Or simply stay consideration until the Supreme Court acts on Dobbs.

Adhere to proper procedure is fine, but there is also the principle that courts should look to substance over form, and procedure is nothing if not form.    

 

Astonishing

This story is the most surprising thing I have read in a newspaper in a very long time, maybe ever.   Ahmaud Arbery was a Black man jogging through town who was confronted and murdered by three White men.  Jackie Johnson, the Glynn County Georigia prosecutor, declined action.  (The three men were eventually charged and convicted.)  Here is the surprising information in the article:  First, Ms. Jackson was defeated in the next election, and hence removed as county prosecutor.  Second, she has now been charged with crimes, indicted no less, for her conduct.  I cannot recall any prosecutor being charged with a crime, let alone indicted, for malfeasance.  I suppose it must have happened, but I cannot recall another instance.   I am astonished. 

"Ms. Johnson is charged with “violation of oath of public officer” and “obstruction and hindering a law enforcement officer,” according to the indictment, which the state attorney general’s office released on Thursday.

 

The indictment says Ms. Johnson failed “to treat Ahmaud Arbery and his family fairly and with dignity” by not disclosing that she had sought the assistance of another district attorney before recommending that he take over the case. Ms. Johnson recused herself because Gregory McMichael had worked in her office.

She also “knowingly and willfully” directed two Glynn County police officers not to arrest Travis McMichael, “contrary to the laws of said state,” the indictment said.

“Our office is committed to ensuring those who are entrusted to serve are carrying out their duties ethically and honestly,” the state attorney general, Chris Carr, said in a statement, adding that the state was continuing to investigate Mr. Arbery’s case.

It is now being led by a fourth prosecutor, whom Mr. Carr appointed in May 2020."

Kraken - No Exit Through Bankruptcy

A few more thoughts regarding the Kraken crew, Sydney Powell, Lin Wood, et al. 

I don't know what the sanction amount will be in the Michigan case.  I don't have a sense of how much time was put in by the Defendants or how many briefs got filed.  And they were  represented by government lawyers I believe (but am not sure), whose hourly rates are different from those of private firms.  I expect the number will be several hundred thousand dollars.  We shall see.  Suppose so.  The lawyers are, as a group, sufficiently wealthy to pay that sort of sanction.  Individually, it is a different matter.  I expect that one or two would be ruined if faced with the total. And, in the end, it is up to the Defendants whom they collect from -- the award is joint and several.  But just in case one is curious, the kind of sanctions imposed in this case are not dischargeable in bankruptcy.  Under 11 U.S.C. §523(a)(6), a judgment based on an injury resulting from willful and malicious conduct is not dischargeable.  Willful injury is "a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury."  Kawaauhau, 523 U.S. at 61 (emphasis in original).  An act is malicious under 523(a)(6) when the person acts in conscious disregard of their duties or without just cause or excuse.  Malicious intent occurs when the actor desires to cause the consequences of his act, or believes that the consequences are substantially certain to result form it."  In re Moore, 357 F.3d at 1129.   Those standards are met.  Judge Parker's order clearly and explicitly attributes to each lawyer individually bad faith conduct.  That is, each is found to have acted in conscious disregard of their duties (as lawyers) and of the rights of Defendants.  Their conduct aimed at imposing costs on Defendants, not vindication of any cognizable rights of Plaintiffs: "And this case was never about fraud--it was about undermining the People's faith in our democracy and debasing the judicial process to do so."  (3)  A point supported by the failures to correct errors or to withdraw papers that are either moot or unfounded, itself grounds for sanctions.

What sort of defense might the attorneys have put on once the Court gave notice that it was considering sanctions?  That is something I have pondered from time to time since listening to the July 12 2021 hearing.  The defense that presented at the hearing (save for Newman and Rohl) was hard to credit.  The argument was that these various 'witnesses' signed affidavits and some of the affidavits had been submitted to other (state) courts.  Attorneys are entitled to rely on affidavits as reasonable investigation and attorneys themselves are entitled to be believed by the court.  Finally, we can show that the affidavits are credible if, Judge, you will hold an evidentiary hearing so the 'witnesses' can be examined.  But none of those arguments makes sense.  The affidavits submitted to the state court had been found to be inaccurate and not credible.  Anyway, how would the fact if filing make the affidavit credible, or remove the duty to investigate?  More importantly, it would make no difference because the affidavits just do not support the allegations of the Complaint; whether true or false, the affidavits are irrelevant to the allegations of the Complaint.  It is the Complaint that the lawyers are responsible for, and that is unsupported.  It is just false that attorneys can step out from the duty of reasonable investigation by blind reliance on a party's or third party's assertions -- the assertions have to be plausible.  These weren't.  And attorneys are not entitled to credibility or plausibility merely because they are the source of some allegation.   As to the evidentiary hearing line, well, it would serve no purpose.  The affidavits are irrelevant.  Having witnesses repeat the statements cannot change that.  As the Plaintiffs' lawyers knew what the Judge was concerned about before the hearing, namely the basis for and investigation of the allegations of the Complaint and Amended Complaint, the lawyers' arguments seem to be so bad as to invite sanctions.  (I was a little surprised that the Judge did not impose further sanctions for such bad arguments.)  All I have come up with that they might have accepted fault for the conduct and requested leniency.  Which is not a defense, I know.

Another Loss For Kraken

The US District Court for the Eastern District of Michigan handed down its order on the motions for sanctions against Plaintiffs' counsel, the Team Kraken.  The decision, as expected, went against Team Kraken.  It s a long order, 110 pages, covering the jurisdiction and authority of the court, the standards for imposing sanctions, the procedure to date, the factual bases for sanctions, and individually for the offending conduct the of the attorneys sanctioned.  There are a couple of points  want to note today, before a longer discussion (perhaps) tomorrow.

The primary Plaintiffs' lawyers were Lin Wood, Sydney Powell, Howard Kleinhendler, Stefania Junttila, Julia Haller, Brandon Johnson, Scott Hagerstrom.  Their misdeeds and misconceived arguments are set out in detail.  They got what they deserved: monetary sanctions, order to take CLE (to be attested by counsel in Michigan), and referral for disciplinary proceedings including disbarment.  More about them in a later post.

Two lawyers played much smaller roles: Emily Newman and Gregory Rohl.  Newman was contract lawyer, did not have a role in drafting the complaint, and had quite limited work on the case (about 5 hours).  (34)  Rohl was local counsel.  He filed the papers at the request of the lead counsel, and, he said, reviewed the complaint before filing -- 830 pages in about an hour. (36).  They both received sanctions.  In fact, all of the lawyers are subject to the same set of sanctions: jointly and severally liable for Defendants' fees (excluding Davis), completion of 6 hours of CLE credits on pleading standards and 6 hours on election laws, and all were referred to their respective Bar for disciplinary investigation and proceedings.

Newman's name was on at least some of the offending papers, in particular the initial and amended complaint.  In permitting (or agreeing) to have her name on the papers, she endorsed the papers, took responsibility for the papers complying with Rule 11 and attested that the papers were filed in good faith and a proper purpose.  She did not withdraw her name from any of the papers, and did not disassociate herself from the failure to voluntarily and timely dismiss the complaint when the complaint became moot.  She signed on.  Rohl is the same boat.  He signed the papers and never withdrew. 

It is not new that sanctions can be imposed on local counsel for papers drawn up by lead counsel.  The days of "dropbox" local counsel have been long gone.  There is no dispute that local counsel vouches for what they file and that they have to review the papers to make sure a reasonable attorney would file them.  Nor can local counsel get protection by having lead counsel do their own filing after the initial papers and pro hac admission.  In the jurisdictions where I practiced, the rules required local counsel to be on every paper filed and affirm that they would ensure compliance with all of the rules.  So Rohl goes with Powell and Lin.

Newman is, I think, a more sympathetic case.  Contract lawyers have little control over anything, lead economically precarious lives, more so that other attorneys I believe.  She put in few hours and had no part in the worst papers.  But her name was on them, and other offending papers.  That put her on the same block to be chopped along with Powell and Wood.  For us, that is other lawyers, she an example of risks exceeding responsibility and compensation.  Does she deserve the same treatment as Powell and Wood and thier cohort?  Perhaps not (I think not).  But how fine should the lines be drawn in this case?  I see reasons for the judge to decline making distinctions, e.g., all signed the  papers, none took proper steps to withdraw or amend, none investigated any of the allegations or claims before filing (or even after I think).  Lie down with dogs.. 

Some Questions From Union Gospel

The decision in Union Gospel is built on the ministerial exemption afforded to religious institutions under the First Amendment of the US Constitution and, presumably, state constitutions.  What sort of group qualifies as a religious institution for this purpose?  Surely religious entities that are incorporated under applicable law -- churches, temples, and the like.  Do confraternities count, i.e., lay organizations engaged in religious work or missions?  Union Gospel is an employment case.  Do its terms also apply to voluntary organizations?  May a lay group bar from membership those not in compliance with its doctrines?  I would guess it could, but that is a guess.  I do not know the areas of applicable law well enough to offer more than that.  But suppose the organization provides services, along the lines of Union Gospel.  Does that change things, or is the important line whether it has employees?  Or requests payment for (some) services? 

In her concurrence, Justice Yu says: "Given our state’s long-standing commitment to eradicating discrimination and to fostering a diverse workforce, it is my greatest hope that religious institutions will recognize and embrace the choice to limit the “ministerial exception” to those employees for whom such an exception is absolutely necessary and grounded in sound reason and purpose. After all, the right to exclude the LGBTQ+ community from ministerial employment by religious institutions is not a right that must be exercised. Rather, it is a choice by that religious institution and it is a choice that is not governed by an external judicial doctrine but rather one carved out by the religious entity itself."  (¶46, emphasis added.)  I wonder what Justice Yu means by "absolutely necessary and grounded in sound reason and purpose".  In the instant case, what sort of factors would count toward "absolutely necessary and grounded in sound reason and purpose"?  Would it be enough to point to salient passage in the Christian Bible?  IS some further doctrinal defense needed?  Is the religious belief or beliefs to be grounded in reason, not revelation?  To the second emphasized phrase, is it appropriate to put the issue in such voluntaristic terms?  What does Justice Yu mean by choice?  Is it her thought that, e.g., whether to believe in pre-destination is a matter of choice for Calvinists?  Do the religious choose what to believe?  I think the answer is a rather mixed response -- conversion is not always a choice, and I think normally not really voluntaristic.  In other words, is the identity put at issue not a fundamental aspect of identity, quite unlike whether to be a lawyer or a teacher?  Or, to be a bit tendentious, is religious identity less important than sexual orientation? 

The passage, for me, reads as a call to religious institutions to minimize their religious commitments, and to embody a certain lack of respect for the religious.  Washington permits ideological legal services I believe, e.g., legal services that represent particular causes or groups.  Lawyers limit their practices in all sorts of ways.  Why would it be that modeling the religious commitment to alleviating need not count as "elucidating or teaching" the faith? 

Can The Fifth Say No?

Yesterday the Fifth Circuit Court of Appeals upheld yet another set of restrictions on abortion, vacating and reversing the district court in Whole Women's Health et al. v. Paxton et al.  The opinions in the en banc decision are here.  I skimmed the dissent, but read the majority and concurrence with care.  In recent years the Fifth Circuit's decisions on abortion have gone up to the Supreme Court twice, both times reversed by the Supreme Court.  Both times the Fifth Circuit approved restrictions on access to abortion, uncritically accepting the state governments' (Texas and Louisiana) claims.  And again this week, the Fifth Circuit finds that it really does not much matter what the burdens are.  Restriction get low scrutiny as long as the restrictions do not, by themselves and without considering any other factors (e.g, other restrictions and costs) "unduly burden" some undefined large fraction of women seeking abortion services.  This decision is notable for continuing the process of excluding from consideration the relation between the supposed benefits of the legislation and supposed burdens of the legislation.  It does not matter that removal of wisdom teeth is more dangerous for the patient than are abortion procedures, or that the health and safety regulations do not have anything much to do with either health or safety, nor that the speech compelled is inaccurate and tendentious.  This set of judges sees no burden so great that it is undue.  A concurrence also gives us the benefit of a lesson in the history of biological sciences, explaining that some discoveries are not immediately taken up by the medical community, so, of course, judges should not put much store by expert testimony (well, except in criminal cases when stuff like bite-mark testimony is accepted). Judge Ho's concurrence is unrelated to the actual issues, and is misleading even considered in the most favorable of lights.  The decision is ordinary politics. Access to abortion services is a right grounded in the Constitution, like a host of other rights not mentioned in the text, like the right to travel among states, like privacy, etc.  Legal realism is the real doctrine of these judges.

  

Which Ones Are Fundamental?

 

              ^{In Wood v. Seattle’s Union Gospel Mission, Washington Supreme Court reversed a summary judgment in favor of Union Gospel in an employment discrimination dispute. The plaintiff, Wood, had been a volunteer at Union Gospel for some time and, following graduation from law school, applied for an open position as a staff attorney. He was denied the position after he disclosed that he was in a relationship with another man and that he hoped one day to marry. When Woods first began work with Union Gospel as a volunteer, he had signed a statement of faith affirming that his commitment to upholding biblical values. The primary state law applicable to the case is Washington’s Law Against Discrimination (WLAD), chapter 49.50 of the Revised Code. WLAD exempts religious nonprofits from the definition of “employer”. On that basis the trial court granted Union Gospel summary judgment. The Washington Supreme Court accepted Woods’ appeal to address whether the exemption of religious nonprofits was unconstitutional on its face, or, if not, is its application to Woods invalid. The Court reviews the history of the statute and the applicable state and federal caselaw, with extended discussion of Our Lady of Guadalupe. The upshot is that the Washington Supreme Court adopted the analysis of Our Lady of Guadalupe, which limited a religious exception to anti-discrimination employment laws to positions which involve a significant ministerial function. The exception is upheld against a facial challenge. But then the question, which is sent back to the trial court to consider, is whether Woods’ potential role as a staff attorney is sufficiently intertwined with religious teaching and ministerial activities, to be within the exception of religious nonprofits from the reach of WLAD. In other words, the district court will need to consider the factors and analysis of Our Lady of Guadalupe to make a judgment about the religious nature (or lack) of staff attorney for Union Gospel.}

              ^{One gets a sense, however, that the Supreme Court, notwithstanding that teh issue had not been addressed below, is inclined to the conclusion that Woods should win in the end:}

^{WOODS acknowledges that all SUGM employees are expected to evangelize, but there is no evidence that staff attorneys had titles as ministers or training in religious matters comparable to Hosanna-Tabor’s teacher. And while staff attorneys are expected to share their faith with clients as opportunities arise, there is no evidence that they are expected to nurture their converts’ development in the Christian faith similar to the job duties performed by the teachers in Our Lady of Guadalupe and Hosanna-Tabor. Further, neither SUGM nor ODLS is a church or religious entity principally responsible for the spiritual lives of its members. SUGM employees are expected to be active members of local churches; SUGM employment alone does not appear to be sufficient religious affiliation. Employees held to be ministers in Our Lady of Guadalupe and Hosanna-Tabor led faith groups and taught religious doctrine. The record indicates that these duties occur outside SUGM, in local churches for SUGM employees. Moreover, WOODS sought employment with SUGM as a lawyer specifically, not as a religious minister or teacher, and there is no indication that religious training is necessary for the staff attorney position, unlike the teachers in Hosanna-Tabor. (¶41)}

^{Maybe that is an accurate account of the record: Maybe Union Gospel made no real effort to show the religious aspects of the staff attorney position. But, as the Court itself says earlier in the opinion, the issue was not litigated below. The Court’s views also come out in the concurrence. “I would hold that there areno reasonable grounds to afford the privilege of the Washington Law Against Discrimination, ch. 49.60 RCW, exemption to Seattle’s Union Gospel Mission (SUGM) because SUGM cannot enjoy a free exercise right to discriminate against an employee who performs nonreligious duties, such as a staff attorney. However, because there are factual questions regarding the duties of the staff attorney, I ultimately concur in the court’s decision to remand.” (¶44) These two sentences are in some tension. Justice Yu first says staff attorney position are nonreligious (so no exemption applies) and then says, second, that there are factual questions about the duties of staff attorneys. The first strikes as more sincere than the second. Or consider the following two paragraphs, which are a short lecture directed at religious institutions that they really would be better changing their doctrinal commitments, e.g., to marriage as one man and one woman, or prohibitions on extramarital sex. Not much room there for minority views of what conscience demands. To be sure, the concurrence recognizes that Union Gospel’s claim is not frivolous, there are “some circumstances” weighing in its favor: it describes the legal service as a ministry that operates with an evangelical purpose. But, of course but, Union Gospel does not hold the attorneys out as ministers, and does not require a significant degree of religious training. “And in the context of a nonprofit legal aid organization serving the civil legal needs of vulnerable populations, I believe it is simply not possible to simultaneously act as both an attorney and a minister while complying with the [Rules of Professional Conduct].” (¶52) Religious consideration are not prohibited, that much is conceded. (¶53.) At least, clients are permitted religious conscience. For lawyers, it is quite unclear whether Justice Yu thinks attorneys are permitted a conscience, nor, in the event the lawyer has moral reservations about a client’s requests the lawyer is permitted to withdraw or is instead required to elide their moral concerns. I wonder if, in Washington, Union Gospel can require its employees to be Christian, or is it required not to inquire into religious beliefs, or their absence? That would be discrimination on the basis of creed, which WLAD bars. Or is the analysis limited to discrimination related to fundamental rights, marriage and sexual orientation, and religious commitment is no so connected to a fundamental right?}

Kraken Under Siege

^{Back in July (the 12th I believe) the District Court in Detroit Michigan held a hearing on imposing sanctions on the team of lawyers who filed a lawsuit seeking to have the election results thrown out. An all day hearing, which was interesting to listen to and watch. The judge permitted the parties to file supplemental briefs, which have now been filed. I want to discuss the hearing, although it was a month ago. But before that a couple of notes about other related developments.}

^{First, the District Court in Colorado has imposed sanctions on the Kraken legal team who filed there: they must pay the legal fees of the defendants, who ranged from Dominion Voting Systems to the Secretaries of State for Georgia and Pennsylvania. Sanctions are likely to run to several hundred thousand dollars. Sanctions were imposed under Rule 11 and the inherent powers of the Court.}

^{Second, in the District of Columbia, Sydney Powell is facing a defamation suit by Dominion Voting Systems, based on Powell’s claims of voter fraud, stolen elections, switched votes. In her motion to dismiss the suit, Powell argued that no reasonable person would believe her statements were factual. A reasonable person would consider her various allegations that Dominion Voting Systems rigged election outcomes and manipulated tabulation were merely opinions and not statements of fact. That Dominion Voting Systems’ Complaint labels the allegation as wild, and outlandish was part of her argument. I guess the idea was that the more outrageous the defamatory statement the less likely it is that a reasonable person would believe it a statement of fact, and so no defamation action would be possible. Well, that theory is not quite so bad as Powell’s claims, or the theories of Kraken suits, but it is pretty bad. My guess is that it is just short of sanctions. More interesting is the conversations that occurred in drafting the motion. I wonder what the lawyers told one another as they wrote it, and what they said in signing it. The Motions to Dismiss (by Powell, Giuliani, and Mike Lindell heard together as related cases) were denied. In D.C., Powell and Lindell claimed that the court did not have personal jurisdiction over them. Unfortunately, Powell made defamatory statements in D.C., transacted business there, and Dominion suffered injury there. So too Lindell.}

^{Third, there are host of disciplinary complaints still pending. Or they might be pending. Attorney disciplinary processes are almost always secret, at least until sanctions are imposed, so it is hard to tell when there is an investigation. But given that court imposed sanctions are still coming down, it is likely that disciplinary investigations are also still going on.}

^{Now to the arguments at the July Kraken hearing in Detroit. The judge held he hearing so that she could hear from the plaintiff attorneys what basis they had for the allegations of their complaint, in other words, what was the evidence from which a reasonable attorney might conclude that the allegations had a plausible basis in fact. The attorneys over and over again pointed to declarations attached to the complaint as providing reasonable grounds for the complaint. And then to ask for an evidentiary hearing. Neither line of argument got traction with the judge. The recurring problem for the plaintiff attorneys was that the declarations either had no relevance to the allegations of the complaint, or were facially implausible or incredible, giving the attorneys reason to check on the veracity of the witness statements. In response to such points the attorneys raised the argument that they were entitled to believe sworn statements without more, and that some at least had been filed with other courts and so were entitled to be believed. To which one might reply, and the judge did several times, that attorneys are not entitled to just accept whatever a client or witness says particularly when the statements are facially implausible. And, in many instances, the the declarations had no relevance and so did not support any of the allegations or claims. This went round and round and round, the judge asking for the basis for reasonable belief in the allegations and claims and the attorneys pointing to declarations and asking for an evidentiary hearing (so the witnesses would be before the court and they could answer any questions). This did not strike me as a persuasive course of argument. And repetition did not make it more persuasive, but instead less. The strategy seemed to be to stand on the work and ask for a hearing over and over becuase at a hearing they would be able to put on their case. As the judge had dismissed the complaint, it seems oddly hopeful to think the judge would now relent and have an evidentiary hearing on a case that was already dismissed. But what else could they have done? Admit the errors and hope for leniency? Well, yes, that does seem to be what reasonable lawyers would do as there was no defense.}

^{Only one lawyer seemed to me to be deserving of leniency, perhaps even dismissal form sanction, a contract attorney who had put in a few hours (5) on the case. Seemed to em that such a person does not have sufficient control or influence over the work to be tagged with sanctions.}

^{As noted above, the supplemental briefing is done. We await the decision of the judge. Given the outcomes in other Kraken cases, I think it will be a bad day for plaintiffs’ counsel.}

Rudy At Half-Time

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.

An I For An I

In deciding Fulton the Supreme Court sidestepped both the question of whether to overrule Smith and how far accommodation of religious beliefs in conflict with anti-discrimination policies may go. In summary, the Supreme Court found that the Philadelphia policies and laws were not of general application, because they provided for exceptions, and so the requirements of Smith had not been met and the case could be decided without addressing the standing of Smith.  Catholic Social Services won, at least for the moment.  The litigation is likely to continue in another form, as one response Philadelphia may make is to amend the relevant statutes and policies to eliminate exceptions, thereby curing the lack of general applicabiity of the laws.  That route would result in another suit and the Supreme Court facing directly whether to preserve or overrule Smith.  A reason not to go that route is that there are already three Justices prepared to overrule Smith, and another 2 or more thinking about overruling Smith.  My impression is that, when the question comes to the Supreme Court, Smith will be overruled. Philadelphia then ought to take the loss and let others litigate the status of Smith. The result in Fulton surprised me.  I thought that the Court would both address Smith and either find for, or suggest a method of analysis favorable to, Catholic Social Services. That did not happen, obviously, but there is writing on the wall. 

The ACA decision (California v. Texas) took up most of the commentary on the decisions handed down Monday.  That seemed to me an easier case, indeed, one that would not have made it to the Supreme Court had the lower courts not be so ideological.  The technical nature of Fulton also helped lower its profile, but the problems the case presented are not going away.  The conflict between religious belief and anti-discrimination laws and regulations is not solved.  The apparent commitments of a majority of the Supreme Court look to me to invite further litigation, that is, the Court will overrule Smith and will try to work out means by which there will be greater accommodation of religious views as exempted, to a limited but real degree, from anti-discrimination law.  Stay with CSS as an example.  It is not a simple anti-gay bias that is at work.  CSS serves unmarried gay men and lesbians along with their heterosexual counterparts.  (So the Supreme Court says anyway.). CSS draws a line only between married same-sex and married different-sex couples.  Married couples is the locus of conflict here.  CSS has religious commitments concerning the nature of marriage that entail that preclude treating same-sex marriages as equal with different-sex marriages.  But as it willing serves unmarried persons of various sexual orientations, it is not really true that it is excluding or denigrating gay men or lesbians.  If the analysis of Bostock gets applied that fact may not matter because denial of service to same-sex married couples would seem to be in virtue of sexual orientation of the married couple.  But Bostock does not yield a clean answer because it is, after all, just within the set of married couples that different treatment arises.  I.e., it is not solely sexual orientation that matters, as was the case in Bostock. 

For many, any exemption would be anathema, i.e., any exemption will denigrate gay and lesbian married couples, and so gay and lesbian persons.  They would be an affront to their identities.  And the absence of any exemption denigrates the adherents to the Church.  CSS is not a business; it is part of the religious practice and mission of the Church and its members.  Forcing them to abandon the mission denigrates the importance of religious identity, denigrates beliefs fundamental to identity.  Which I carries the day?  I am not at all certain.  Tentatively, my thought is that the accommodation and exemptions is the better route.  In Philadelphia, there are 21 or 22 other agencies involved in offering credentialing to prospective foster parents.  I think all of the other agencies work with same-sex married couples, so there are lots of alternatives to CSS, and its presence has no material effect reducing opportunities for same-sex couples.  Certainly the continued presence of CSS doe snot impose an undue burden on prospective same-sex married couples with to become foster parents.  Permissible obstacles to abortion are higher.  Pharmacists, who are engaged in business, are able to opt out of service involving contraceptives.  These too involve rights grounded in the Constitution, and yet exemptions and accommodations are to many quite acceptable.  Tentative thoughts.