H. Lee Sarokin, a 90-year-old retired federal judge who was appointed to the United States Court of Appeals for the Third Circuit by Bill Clinton and who famously resigned due to “political attacks,” has penned an op-ed to criticize President Donald Trump’s attorney Rudy Giuliani. The headline, in the form of rhetorical question, reveals the thesis: “Hasn’t the Time Come for Rudy Giuliani to be Disciplined?”
Sarokin was a federal judge for 17 years and eventually became a Huffington Post contributor. He was most recently targeted by Ed Whelan (of Brett Kavanaugh supporting infamy), in a National Review bite headlined “This Day in Liberal Judicial Activism.”
Sarokin got right to the point: “I respectfully suggest that the time has come for the New York Bar to consider disciplinary proceedings against Rudy Giuliani.” Sarokin said that he has been a member of the bar for 65 years and served as a federal judge, but has never seen such an “unseemly and unprofessional performance (because that is what it is) from someone who knows better and was previously held in high esteem.”
He wasn’t even close to finished.
“All of this conduct by Mr. Giuliani would be despicable enough if it came from any lawyer, but it is more reprehensible because it emanates from a former U.S. Attorney and current counsel to the President of the United States,” he said, adding that Giuliani has “remained silent in the face of his client’s own disparagement of the law enforcement community and all those who devote their lives to maintaining its integrity and our safety.”
Sarokin would say that whether Giuliani remains silent or opens his mouth, he’s doing it wrong.
“The president praises a convicted felon for not cooperating with law enforcement and condemns one who has cooperated, and Mr. Giuliani remains silent,” he said. “The president suggests that cooperating with law enforcement might well be deemed illegal, and Mr. Giuliani remains silent.”
“Most recently he has suggested that somehow the credibility of a woman asserting charges against the president should be measured by the amount of hush money she accepted to silence her,” he added. “In the present atmosphere of base and divisive rhetoric, members of the bar should raise the level of the discourse not lower it.”
Before counting the ethical violations, Sarokin accused Giuliani of doing irreparable damage to the legal profession.
“Mr. Giuliani has rendered our noble profession ignoble and condemnation by the bar is justified; indeed, it is mandated,” he said. Citing New York’s Code of Professional Responsibility, Sarokin said Giuliani has lacked integrity in multiple areas. Under Ethical Considerations (EC) 1-5, reads:
A lawyer should maintain high standards of professional conduct and should encourage other lawyers to do likewise. A lawyer should be temperate and dignified, and should refrain from all illegal and morally reprehensible conduct. Because of the lawyer’s position in society, even minor violations of law by a lawyer may tend to lessen public confidence in the legal profession. Obedience to law exemplifies respect for law. To lawyers especially, respect for the law should be more than a platitude.
Here, it seems, Sarokin is saying that Giuliani is decidedly not encouraging other lawyers to maintain high standards of conduct.
Then comes EC 1-7:
A lawyer should avoid bias and condescension toward, and treat with dignity and respect, all parties, witnesses, lawyers, court employees, and other persons involved in the legal process.
For this, you could look to Giuliani’s many statements about Michael Cohen, Cohen’s father-in-law, Special Counsel Robert Mueller, and so on. From there, Sarokin cites Disciplinary Rules (DR) related to misconduct (Thou shalt not “engage in conduct that is prejudicial to the administration of justice”), representing a client within the bounds of the law (Thou shalt not “knowingly make a false statement of law or fact”) and trial publicity.
The trial publicity rule says that a lawyer representing someone in a criminal matter “shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in that matter.”
If the Associated Press‘ inside look at Giuliani’s defense strategy is on the money, then material prejudice appears to be part of the plan:
As Rudy Giuliani joined Trump’s legal team in April, the White House settled into a new strategy: Drag out the interview drama for months, and use that time to ratchet up attacks on Mueller’s credibility and complaints about the cost and time of the probe, according to the officials and advisers familiar with the strategy.
Giuliani led the charge. His scattershot arguments sometimes frustrated others in the White House, as he frequently moved the goalposts as to what would be required to have an interview. But the effect was to ensure the process would drag out longer.
All of this being said, there is a key problem with Sarokin’s analysis, New York University Law School Professor and legal ethics expert Stephen Gillers told Law&Crime.
“Unfortunately, Judge Sarokin cites provisions of the former New York Code of Professional Conduct, which was supplanted in April 2009 by the Rules of Professional Conduct,” Gillers said. “Giuliani can claim that he is operating in the political realm, not a legal one, and so the rules should not apply to him, at least not in the same way.”
Nonetheless, Gillers said, Giuliani’s statements (especially those about Cohen’s father-in-law) may have crossed the line.
“He has come close to the line, however, and may have crossed it with statements, echoing Trump but not as emphatic, that question the legal exposure of Michael Cohen’s father-in-law during the time Cohen was slated to testify before a House committee,” Gillers said. “Threatening a potential congressional witness, even in the veiled way that Trump and Giuliani seem to have done, could easily lead to an obstruction of justice charge.”
Gillers also said there is a New York rule that Giuliani should be aware of.
“The other thing Giuliani has to worry about is a rule in New York, but not in the ABA Model Rules or in other states, that makes it a basis for discipline for a lawyer to ‘engage in any other conduct that adversely reflects on the lawyer’s fitness as a lawyer,'” he said, pointing to Rule 8.4(h) — a catch-all rule of conduct.
“Working to Giuliani’s advantage, as I said, is the fact that his extreme, false, misleading, and unmoored statements are in the context of a political battle, where the courts will take a more tolerant stance than they will for the same kind of conduct in law practice,” Gillers continued. “On the other hand, Giuliani presents himself as Trump’s lawyer when he talks, so perhaps he can’t depend on judicial deference to political speech after all.”
[Image via Drew Angerer/Getty Images]
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