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Commentary: The case for Rudy Giuliani’s disbarment

David Schultz//October 9, 2019

Commentary: The case for Rudy Giuliani’s disbarment

David Schultz//October 9, 2019

Rudy Giuliani potentially should be disbarred. Serving as President Donald Trump’s attorney he appears to have committed several ethical and legal violations that warrant an investigation and possible discipline including disbarment by the New York State Attorney Grievance Committee.

The practice of law is a heavily regulated profession. Attorneys are not exempt from the law and must follow it. They also must follow ethical rules established by the courts where they are licensed. Failure to do both warrants an investigation and possible discipline that includes up to disbarment and possible referral for criminal prosecution.

Rudy Giuliani is licensed to practice in the state of New York. He must comply with all applicable federal and New York State law, and he must follow the New York Rule of Professional Conduct (NYRPC). The latter is the professional code of ethics regulating attorneys such as Giuliani who are licensed to practice in New York State. What are his duties as an attorney?

Rule 8.4 declares that an attorney shall not: violate or attempt to violate the Rules of Professional Conduct or engage in illegal conduct that adversely reflects on the lawyer’s honesty, trustworthiness or fitness as a lawyer; promotes dishonesty, fraud; that is prejudicial to the administration of justice; or adversely reflects on the lawyer’s fitness as a lawyer. Giuliani in his representation of Donald Trump possibly has committed numerous acts that qualify as a violation of Rule 8.4.

Potentially the three most serious charges against him are violation of the Logan Act, federal campaign laws, and aiding abetting the obstruction of justice. The Logan Act is a federal law dating back to 1799 criminalizing unauthorized persons from negotiating disputes between the U.S. and a foreign country. News accounts suggest Giuliani, outside of the purview of the State Department, visited Ukraine and perhaps other countries to seek their assistance in investigating former Vice-President Joe Biden and to conduct who knows what other business. If Giuliani was acting as the president’s private attorney, then this action violates the Logan Act.

But if the president authorized Giuliani’s action, he may not be violating the Logan Act. If the purpose of his visit was to convince Ukraine to investigate Joe Biden for the purposes of helping his client Donald Trump in the 2020 presidential election, then he is helping the president in his individual capacity violate federal laws that make it illegal to seek the assistance of a foreign government to interfere in a U.S. election. In either case, acting for or outside the U.S. government, he has possibly broken at least two federal laws.

The Muller Report listed at least 11 instances of possible obstruction of justice that the president may have committed but for which he could not be indicted according to a Justice Department memo declaring sitting presidents cannot be indicted for a crime. If Giuliani as Trump’s personal attorney advised Trump in any of these 11 instances, this may constitute aiding and abetting the obstruction of justice. If Giuliani counseled Trump in seeking assistance from Ukraine in encouraging its officials to intervene in US elections, his advice may have provided “substantial assistance” to commit a crime under federal and perhaps state law and therefore he could be charged with aiding and abetting obstruction of Justice.

Generally, and in New York, it is illegal and unethical to advise clients how to break the law. If Giuliani provided legal advice and a strategy to Trump regarding how to violate any laws, that advice would be grounds for disciplinary action. Additionally, if Giuliani offered advice to any Trump associates to lie under oath, he has aided and abetted this illegal act.

Giuliani’s repeated media appearances where he has possibly deceived, misled the public, or disparaged congressional or legal investigations constitute additional ethical violations. They question his fitness to practice law, they question his honesty and they demonstrate prejudice to the administration of justice. Giuliani has a duty to zealously represent his client and he retains First Amendment free speech rights, but he must act in an ethical manner that is consistent with the requirements he and all other attorneys in NY must follow in order to be allowed to practice law.

Finally, Rules 1.7 to 1.13 of the NYRPC describe what constitutes conflicts of interest and who is the client. What is not clear is who Giuliani is really serving, Trump as president, Trump as private individual, or Trump as a government actor. If his role as attorney has mingled any of these roles, he has possibly violated conflict of interest rules that too merit investigation and possible discipline.

There is a strong case under the New York Rule of Professional Conduct that Giuliani has acted illegally and unethically. If the facts prove accurate, Giuliani’s actions are serious enough to merit disbarment and criminal prosecution.

After thought: Revelations that Attorney General Robert Barr appears to be defending Trump in matters such as a probe of his private finances too also raise questions about who is the client and conflicts of interest. Barr is supposed to represent the United States and not the president in his personal capacity. If he is representing both then he has conflict of interest problems that require withdrawal and possible ethical discipline.

David Schultz is a professor of political science at Hamline University and has taught legal ethics or professional responsibility for nearly 20 years.

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