Why Hasn’t Rudy Giuliani Been Disbarred Yet?

Even before he replaced Michael Cohen as President Donald Trump’s doomed fixer, even before these impeachment proceedings began, lawyers were asking why Rudy Giuliani was still calling himself an attorney. He regularly inflicted real carnage on the legal profession with every televised appearance accompanied by the “Attorney” moniker beneath his bobbing, bug-eyed head, arms flailing as he apoplectically railed about unfounded conspiracies and contradicted himself seconds later. Lawyers are often many things at once, but Giuliani’s TV clownery falls well outside the definitions you’ll find in the ABA guide, or New York’s Rules of Professional Conduct, which both describe the attorney’s role as one of advising, counseling, representing, drafting, negotiating. More sagacious—less salacious—public spectacle.

Then Giuliani joined the president’s personal legal team, assuming a role that so perverts the legal profession that the question is no longer Why is Giuliani still calling himself an attorney?, but rather, Why hasn’t Giuliani been disbarred already?

In service of the president, Giuliani outsourced dirt-digging to Lev Parnas and Igor Fruman. In early October, both were indicted in part for their role in ginning up a nonsensical basis to oust U.S. Ambassador to Ukraine Marie Yovanovitch, which cleared the way for Giuliani’s even dirtier work in Ukraine: lobbying Ukraine’s president, Volodymyr Zelensky, to publicly announce an investigation into Joe and Hunter Biden and Burisma, presently the central issue of the House’s ongoing impeachment inquiry. Despite being as key a witness as a witness can be, Giuliani has refused a House subpoena to discuss his role, calling the impeachment inquiry “unconstitutional, baseless, and illegitimate.”

Besides facing a potential obstruction charge stemming from his refusal to participate in the House’s impeachment inquiry, Giuliani’s Ukrainian misadventure is now the subject of three seemingly related federal investigations, covering various aspects of his relationship to Parnas and Fruman, his failure to register as a foreign agent, potential campaign finance violations, and his own business ties in Ukraine. There’s also a counterintelligence investigation to discover what role foreign governments have had in influencing Giuliani’s conduct. Former national security adviser John Bolton’s characterization of Giuliani as a “hand grenade” that would blow everyone up is looking less like hyperbole and more like an understatement each day. Giuliani is the second biggest elephant in the congressional hearing room next to Trump: physically absent but omnipresent, whether it’s George Kent testifying to Giuliani’s “campaign of lies” or Gordon Sondland and Kurt Volker claiming to have attempted to coax Giuliani off the roof of particularly ludicrous conspiracies. In Wednesday morning’s impeachment hearing, Sondland seemingly spoke for the entire bus now parked atop the president’s attorney: “We did not want to work with Mr. Giuliani.”

Giuliani’s career trajectory is well-known but worth revisiting. After taking down the Italian Mafia in New York City as U.S. attorney for the Southern District of New York*, he became New York City’s mayor, fortuitously presiding over a nationwide drop in crime. Giuliani’s ability to communicate, sympathize, and lead following the Sept. 11 attacks raised his stock to mythic levels. He then cashed in his goodwill and fame to enter the private sector as “Giuliani Partners,” a consultancy that claimed to offer “a comprehensive range of security and crisis management services,” including cybersecurity (but presumably not including butt-dialing). That no one seemed to know precisely what Giuliani Partners did didn’t stop foreign clients from throwing millions at Giuliani.

Much is said about Giuliani and Trump’s obviously shared kinship from their time in the New York City media limelight, but it appears to be Giuliani’s willingness to accept money from shady foreign entities that has most prepared him to become Trump’s new bagman. It wasn’t only consulting fees—Giuliani Partners often partnered directly with the companies for whom they consulted, companies that often carried criminal and regulatory liability. He’s also made quite a bit of money on the public speaking circuit, often from controversial sources. It’s difficult to point to one particular client of Giuliani Partners as the predicate for Giuliani’s past year of lobbying in Ukraine, but it certainly wasn’t a leap for him, even if the transition seems jarring to those who still view him as America’s Mayor.

This is all to say that whatever Giuliani is presently doing as the “president’s attorney”—and he’s doing a lot, some of it potentially criminal, much of it certainly unethical—it doesn’t vaguely resemble what attorneys in good standing actually do. And while the distinction between attorney and nonattorney cuts straight to the legitimacy of the profession, it also matters for a more crucial, tactical reason. If Giuliani is genuinely acting as the president’s personal attorney, due to attorney-client privilege, communications between them generally won’t be subject to discovery. An important clarification of that rule is that privileged communications must involve the asking or receiving of legal advice. Last year’s Rudolph Giuliani, Michael Cohen, found this out the hard way when a special master ruled that practically none of his 1,400-plus communications with Trump were privileged, because they were outside of these bounds.

Should things continue to devolve, Giuliani, like Cohen, won’t be able to hide behind privilege either, and not only over distinctions of what constitutes “advice.” If a court finds “that the legal advice has been obtained in furtherance of an illegal or fraudulent activity,” the privilege is lost due to the crime fraud exception.

And yet—despite practically no evidence that he’s practicing law, and mounting evidence that he’s engaged in potentially criminal and at least disgraceful, unethical activities—Rudolph William Louis Giuliani remains in good standing with the New York bar, at least through May 2020 when he’s due to reregister and submit his requisite CLE (Continuing Legal Education) credits.

The simplest reason could merely be that New York state’s Attorney Grievance Committee hasn’t gotten around to it yet. But it’s been asked. A month ago, Long Island congresswoman Kathleen Rice wrote to the committee, citing Giuliani’s “dishonesty” and “deceit” to argue that Giuliani was in violation of New York’s Rules of Professional Conduct and his oath to uphold the U.S. Constitution. Even without this complaint, the Grievance Committee could also act sua sponte where infamous criminal notoriety might instead suffice, as may have been the case when it disbarred Michael Cohen. But Cohen had pled guilty to felony charges, and Giuliani is still digging his heels in. Perhaps the answer is patience.

Or perhaps the answer lies in Giuliani’s fame. Beyond their shared New York origins, Giuliani and Trump are both politician-celebrity hybrid creatures, enjoying an inordinate benefit of the doubt from both the media and the criminal justice system. Scandals that would have sunk other politicians don’t easily stick to either—they both retain their ability to appear on television and deliver whatever lies are necessary to change the narrative that day. And during these inquiries, Trump and Giuliani’s fates seem intertwined.

But as numerous others have come to learn the hard way, loyalty is a one-way street with Trump. Time and circumstance may yet dictate the necessity of throwing Giuliani under the bus. If that comes to pass, Giuliani’s status with the New York Bar may seem the least of his problems, but it will probably be one of them. Giuliani signaled that he’s prepared for such eventuality, stating that he has “very, very good insurance.” Giuliani’s own lawyer, Mark Costello, quickly disclaimed Giuliani’s implicit threat against his client, the president, as a “joke.” Really, it was Exhibit Z in the mounting case against Giuliani’s fitness as an attorney.