Thursday, October 3, 2019

Rudy Giuliani and the practice of law

Unless you have been living under a rock for the past few weeks, you know that Rudy Giuliani who is often labeled to be "a personal counsel to Donald Trump" has been in the news a lot lately and that his appearances on TV have generated a lot of commentary, and jokes.  From the Professional Responsibility perspective, here are a few interesting questions Giuliani's practice has generated:  

Is Giuliani practicing law to begin with?

There has been much discussion on whether Giuliani is acting as a lawyer or as a public relations spokesperson.  It is difficult to say because we don't know what is the content of the communications with Trump or Trump's team and what tasks he has been asked to perform specifically.  But I think it can be said that he is doing both. I don't think that making personal appearances and operating as a spokesperson for a client means one is not practicing law at the same time.  I am willing to give him the benefit of the doubt on this one.  Yet, I am not so sure when it comes to taking a trip to Ukraine to meddle in an investigation, which he admitted to with those words!

Is Giuliani violating the rule regarding competence?  Is he incompetent as a lawyer?

Uf!  That's a tough one.  It is pretty clear he has committed some serious mistakes, during appearances on TV by contradicting himself, admitting to misconduct etc.  So, on the one hand, he had made mistakes, but whether those mistakes rise to the level of misconduct because of incompetence, I guess would depend on the quantity, frequency and severity of the mistakes.  I have not been keeping count, so I can't really offer an informed opinion.  I would be interested to hear if anyone has been keeping a record and what they have to say.

Is Giuliani threatening frivolous actions?

Earlier today Pro. Jonathan Turley posted, in part, that Giuliani suggested he was considering suing members of Congress over their impeachment efforts.  In response, Turley states:
Such a lawsuit would be frivolous and it is unsettling that Giuliani would put any credence into such fringe advice.
Calling the impeachment effort as “worse than McCarthy,” Giuliani revealed that he had sought legal advice on the issue: “I had a couple of talks with civil rights lawyers and a constitutional lawyer today and here’s what they’re recommending: that we should bring a lawsuit on behalf of the president and several of the people in the administration, maybe even myself as a lawyer, against the members of Congress individually for violating constitutional rights, violating civil rights.” 
In a long parade of uniquely bad ideas, this would be the final climax. First, the allegation of self-dealing in the Ukrainian call would be a valid basis for an article of impeachment. It would still have to be proven and there are defenses for any such trial that I have previously discussed. This would be viewed by a court as a facially legitimate inquiry. Second, courts do not second guess the House on such efforts. While there continues to be a debate over what might be reviewable in an impeachment proceeding, it is exceptionally unlikely that a court would seriously question this effort. 
The claim is that the impeachment interferes with a president’s inherent authority over foreign relations under Article II. That is facially frivolous.

Can Giuliani rely on attorney-client privilege to avoid Congressional testimony?

Giuliani has suggested that he is protected by attorney-client privilege in the impeachment inquiry by Democrats in the U.S. House of Representatives.  There are a number of problems with this suggestion.

First of all, Giuliani can't be "protected" by the privilege.  The privilege protects information, not an individual, and the privilege belongs to the client who is the one who has the right to claim it.  Second, the privilege only covers communications between the attorney and the client which were shared for the purpose of obtaining legal advice, and if Giuliani is not practicing law (see above) or if the communications were related to tasks other than legal services, the privilege does not apply.  Third, the information provided to an attorney by people outside the attorney-client relationship (such as foreign leaders) may not be protected.

Often Giuliani sounds like he thinks that anything told to him is protected merely because he has a law degree.  If that's what he thinks, he does not understand the law (which may point to incompetence (see above)).

Fourth, it is not clear what information Congress has requested of Giuliani and, therefore, whether it is protected by the privilege.  It is possible, for example, that the information can be considered not privileged because of the crime-fraud exception.

For more on whether Giuliani claims of privilege are valid, go to the ABA Journal, and Above the Law.

No comments:

Post a Comment