(In reference to a report the FBI has advised Trump Org COO Matthew Calamari Sr. and his son to “lawyer up,”) you know the world is upside-down when the Calamari are ordering lawyers for the whole table.

~Stephen Colbert/June 23, 2021

I know, making fun of lawyers is a very low BAR to overcome. Until this week, Steven Wright held the title for excellence in Comic/Attorney Privilege with his one-liner, “It’s 99 percent of lawyers who give the rest a bad name.”  But seriously folks, sometimes it is that one percent that can make all the difference in the world.  Such was the case Thursday, when a New York state appellate court, in response to a request filed by the Attorney Grievance Committee for the First Judicial Department of New York to suspend Rudy Giuliani’s law license, ruled the former New York City mayor and Trump advocate had violated multiple standards of conduct, making false statements in regard to voting fraud during the 2020 presidential election.

In particular, the court’s finding focused on Rule 3.1 of 22 NYCRR 1200, “Rules of Professional Conduct.”  This section addresses “Non-Meritorious Claims and Contentions.”  The following language would seem to nail Giuliani for his conduct related to claims of voting fraud following the 2020 election.

(a) A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.

(b) A lawyer’s conduct is “frivolous” for purposes of this Rule if:

(3) the lawyer knowingly asserts material factual statements that are false.

A common defense in these kinds of cases is for the defendant to claim, “I did not know the information was false,” something that is very hard to prove without corroborating tangible evidence such as handwritten notes, emails, recordings or confessions.  There is circumstantial evidence Giuliani has, in fact, confessed.  Despite making outrageous claims in front of the Four Seasons Landscaping Company or before an assembly of Republican state senators in Michigan, he presented an entirely different story when it came to representing his client before a legal tribunal.

One example is Donald J. Trump for President v. Boockvar, in which Giuliani charged former Pennsylvania Secretary of State Kathy Boockvar with state law violations in the administration of voting in six counties.  During a November 17, 2020 pre-trial hearing, U.S. District Judge Matthew Brann asked Giuliani, “So you are alleging fraud?”  To which, Giuliani answered, “Yes, your honor.”  However, immediately following the hearing, Giuliani informed Brann the complaint had been amended prior to the hearing and did not allege fraud.  Braun dismissed the case on November 21, stating, “Respondent repeatedly represented to the court that his client, the plaintiff, was pursuing a fraud claim, when indisputably it was not.”

Why did Giuliani amend the filing?  Because by choosing to contrast his statements before the bar with those he was willing to make in parking lots or in Washington, D.C. on January 6th, he avoided possible sanctions for making a frivolous case based on false evidence before an actual court.  And there lies the rub.  I would not be surprised if Giuliani’s law license is reinstated following a full hearing.  Why?  Because his counsel (for his sake, one hopes he does not represent himself) will argue the New York code only governs conduct in a courtroom.  Giuliani can argue his statements outside the halls of justice represent his first amendment right to express his opinion, and therefore, did not violate the code of conduct.

No matter what any reasonable person thinks, he might be technically correct.  The solution?  The American Bar Association (ABA) claims, “Lawyers are officers of the court thus subjecting themselves to the court’s supervision and to duties geared to protect the vigor, fairness, and integrity of processes of litigation.”  If that is the case, should a lawyer’s professional conduct extend beyond the confines of a courtroom?  Imagine a doctor publicly touting a dangerous drug he or she would not administer to one’s own patients.  Or prescribing drugs for a non-patient from his home instead of at his office.  Would such action be any less offensive?

Solving the Giuliani problem is actually quite easy.  The ABA and state affiliates simply need to amend the code of professional conduct to clarify the phrase “if there is a basis in law or fact,” by extending it to all public conduct.  In other words, violations include any instance in which an attorney makes a public statement of fact which he or she is unwilling to repeat before a judge or any other legal proceeding.

Doctors have the Hippocratic Oath, “First, do no harm.”  Under current rules of conduct such as those in 22 NYSRR 1200, attorneys can operate under the Hypocritical Oath, “Do no harm only when you are in court.”

For what it’s worth.
Dr. ESP