There Are 50 State Bars in America

Giuliani, a former Justice Department official and US attorney in NYC, is suspended from the bar in New York https://t.co/0D53kWkQ4y

— Maggie Haberman (@maggieNYT) June 24, 2021

So. Question for New York lawyers familiar with how the attorney discipline system usually works.

Is this unusual? Does the speed/substance/attention suggest any political targeting? Or is this (not his conduct, the response) "normal"?https://t.co/7UNKbyy6Ik

— DivineSpecialAppearanceHat (@Popehat) June 24, 2021

And they all function quite differently.  I can't begin to comment on how New York licenses and disciplines attorneys.  I can only say that, in Texas, a disciplinary action like this would have to come from the courts, but only because the State Bar filed suit against an attorney to get the courts to take such action.

And I can only say, from my years of reading the reports of disciplinary action taken by the State Bar of Texas in its periodical (they publish them almost like classified ads:  in the back, in briefest possible explanations) that attorneys get disciplined for various infractions of the DR's (IIRC, it's been awhile), which are enforceable, v. Ethical rules ("EC's," if memory serves; but it's been 30 years since I had to think about this, so....), which are guidelines and not enforceable.  The "E's" are the guardrails, the "D's" are the laws you get pulled over for violating (or even arrested for). 

I haven't made a scientific survey, but actual loss of license seems only to occur where client funds are involved; usually playing fast and loose with an escrow account (where the retainer, basically, is deposited.  Until it is earned, that money is technically the client's.  Using it in ways that aren't covered by the retainer agreement is a fast-track to disbarment.)  I know there are lesser disciplinary actions; usually the majority of reported disciplinary actions are far below the level of disbarment.  But I couldn't tell you how common suspension was; or how common it is as a preliminary matter (i.e., before a final hearing).

So the question in the tweet is the question any competent non-New York lawyer would be asking.  But let me give you a quick explainer, too.  Interlocutory actions are quite rare in the courts, despite the fact you hare about "preliminary injunctions" all the time.  For every one you hear about, there are hundreds of thousands of cases where no one even tries to get one, because the bar (no pun intended) is high.  To get an injunction before final hearing (i.e., trial, usually), you have to show you are likely to prevail at trial, and so the reasons for the order then, are the same reasons as now; the only difference is, the harm is ongoing and needs to stop now.  So if the court wants to stop the harm now, it means the courts about 2/3rds convinced it will also want to stop the harm after a full evidentiary hearing (i.e., a trial).

Which means Guiliani's professional goose is probably fully and well cooked.  Whether this action is ordinary or "political targeting," it indicates the court doesn't think much of what the evidence before it (not everything you've read on-line; there is a difference) says about Guiliani's ability to uphold the ethical canons of the law in New York State.

So whether this is normal in NYState, or extraordinary, it doesn't bode well for Giuliani.  It also reaffirms that the courts aren't playing games, even if the politicians continue to.  Everybody freaks about Trump continuing to complain about "fraud."  60 court cases said there was no fraud.  If Pence had tried to turn his ministerial duty into a constitutional crisis, the courts would have had to declare that a non-starter, too.

Frankly, I don't think the internet yet appreciates just how much of a sea wall the courts are, and have been.  They are a significant part of democracy in America, too.  They are a significant reason why democracy has held firm.  They are a signficant reason why some of this shit has not gone down, and why some of the players, from the rioters at the Capitol building to people with access to the last POTUS, are going to face consequences for their actions.

The mills grind slowly, but they grind exceeding fine.

Adding:

Note that Rudy's suspension is interim, pending the outcome of a hearing where his lawyers (including the excellent Barry Kamins) will have the opportunity to challenge the allegations.

It's just an interim suspension, and he has not yet been afforded the opportunity to defend.

— Scott Greenfield (@ScottGreenfield) June 24, 2021

Yes, but that's what makes it so extraordinary.  This is akin to a TRO, a "hold" entered by the court ex parte, without hearing from the other parties.  It's even harder to get a TRO issued than it is to get a temporary injunction issued.  Rudy may have rallied some "excellent" lawyers, but it would seem the facts are hard against him, and the court is not inclined kindly towards him.  And that's the "extraordinary" part.

These judges really, really hammered Rudy. He's lawyer paillard now.

— George Conway (@gtconway3d) June 24, 2021

's what I'm sayin'!