Most Americans think that lawyers can get away with almost anything. They have good reason: yes, the legal profession assiduously produces and refines codes of lawyers’ ethics and sends forth reams of talk about civility and propriety, but those codes and that talk do little to curb even the worst shenanigans by members of the bar.
The lawyer discipline process is broken. And no one knows this better than lawyers themselves.
Yet when faced with outrageous misconduct by their peers, what do even the most sophisticated lawyers do? They publicly call on bar licensing authorities to take disciplinary actions that they almost certainly know will never happen. Hope springs eternal.
We have seen many such appeals in the weeks since the presidential election. December 7 brought the latest iteration when Lawyers Defending American Democracy (LDAD) released a letter calling on bar authorities to investigate and punish members of President Trump’s post-election legal team, including Joseph DiGenova and Rudolph Giuliani.
The letter from this watchdog group was signed by 1,500 of our nation’s most distinguished lawyers. It rightly criticized DiGenova and Giuliani’s egregious misbehavior as stand-ins for a President who seems bent on gravely damaging America’s democratic and electoral institutions before he leaves office.
Last month, DiGenova went on ultra-conservative Newsmax TV to spread more falsehoods and misinformation about President Trump’s election fraud-hoax. In and of itself that would have been bad enough.
But DiGenova didn’t stop. He seemed to incite violence against the former director of the government’s Cybersecurity and Infrastructure Security Agency, Christopher Krebs. Trump had fired Krebs for saying that the 2020 election was the most honest and secure in the nation’s history.
Speaking about Krebs, DiGenova said “Anybody who thinks the election went well, like that idiot Krebs who used to be the head of cybersecurity…That guy is a class A moron. He should be drawn and quartered, taken out at dawn and shot.”
Those remarks sparked a storm of justifiable outrage and sent reporters and commentators scurrying to find experts who could talk about whether DiGenova had crossed any professional ethics lines.
One of America’s most astute students of legal ethics and a signatory of Monday’s letter, NYU’s Stephen Gillers, responded by citing chapter and verse from the ABA’s Code of Ethics. Gillers identified several ethical rules that DiGenova might have violated and suggested that his Newsmax commentary reflects on his “fitness as a lawyer.” He concluded that, “on these facts a finding of a violation of the quoted rules would at least require a public censure or reprimand and possibly suspension from practice, depending on the presence or absence of mitigating evidence.”
University of Texas Law Professor Stephen Vladeck went further, and tweeted, “Lawyers who make these kinds of threats should be disbarred. Full stop.”
The LDAD letter also targeted Giuliani for making patently false claims in numerous public statements and court appearances about widespread voting fraud, for submitting frivolous court claims, and for aggressively seeking to undermine citizens’ faith in our election’s integrity.
That letter noted that Giuliani’s comments ”fuel Mr. Trump’s campaign to delegitimize the outcome of the election. Attorneys take an oath to support the Constitution. Lawyers who lie to advance the partisan interest of a politician or any client dishonor the constitutional system they’ve sworn to uphold, the legal profession and themselves.”
Well said. I applaud the letter’s criticism of Giuliani and DiGenova.
Still, the fact is that neither is likely to suffer any of the consequences that the letter demands.
Lawyer misconduct of this genre is rarely reported and, even when it is, it is rarely investigated. When investigated, it is more often excused than condemned. And in the exceptionally rare instance when sanctions are imposed, the penalties are almost invariably light.
Disbarment happens about as often as a sighting of Halley’s comet.
As UCLA Law Professor Richard Abel, who also signed the LDAD letter, noted almost 40 years ago, lawyers’ codes of ethics and bar discipline do not “shape behavior through instruction and sanction.” They are most important, Abel wrote, in lending legitimacy to the legal profession, giving it the appearance of an effectively self-regulating profession even if reality doesn’t conform to that appearance. As he observed, “Rules of legal ethics are an attempt by elite lawyers to convince themselves that they have resolved their ethical dilemmas.”
Yet there is more going on in the work of groups like LDAD than simply creating an appearance of legitimacy or generating a reassuring conversation among top lawyers.
It is precisely the failures of bar discipline that make their vigilance so important. In an era when our norms and institutions are under attack and when too many of our fellow citizens are looking the other way, the LDAD letter insists that lawyers must continue to care about the conduct of members of their profession. Citizens and lawyers alike are put on notice that attacks on democratic norms and constitutional standards will be called out and publicly condemned.
LDAD can neither discipline nor disbar, but it can at least shame. Shaming is not guaranteed to shape conduct, but in the absence of effective alternatives, it communicates disapproval and disfavor. As the psychologist Joseph Burgo notes, shaming is an appropriate way for social groups to “express their values and enforce expectations for how their members ought to behave.” Norms and standards that are not defended do not remain norms and standards for very long.
Even as DiGenova and Giuliani continue to practice law, for the remainder of their legal careers they will carry with them the sanction of that shame
Writing in the early 19th century about the most important underpinnings of America’s fledgling democracy, the French aristocrat Alexis de Tocqueville remarked on the importance of this nation’s lawyers. “When one visits Americans and when one studies their laws,” he said, “one sees that the authority they have given to lawyers and the influence that they have allowed them to have in the government form the most powerful barrier today against the lapses of democracy.”
This is perhaps the most important lesson about lawyering that DiGenova, Giuliani, and all who represent Donald Trump seem to have forgotten. They have discredited their profession and brought harm to the democracy that requires their integrity and commitment if it is to flourish.