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Rudy Giuliani Is Not Practicing Law, And Billing Him As Trump’s Attorney Degrades The Value Of A Law License

Rudy Giuliani has become a national embarrassment, not to mention a black mark on the entire legal profession.

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Rudy Giuliani (Photo by Rob Kim/Getty)

Rudy Giuliani is an exaggerated cartoon metaphor for millennials’ slow awaking about the fallibility and tragic decline of their parents. He graduated from law school in 1968, went on to serve as a federal prosecutor, and eventually became mayor of New York. When 9/11 happened, we were all scared and confused, and Rudy stood up there and gave us some confidence in the future. He looked like a leader.

And then, as his star faded, there came a decade of irrelevance. His former prowess battered, but his pride intact, he reached for the spotlight with one final, self-destructive act: enthralling himself to Donald Trump. Rudy Giuliani has become a national embarrassment, not to mention a black mark on the entire legal profession.

Rudy Giuliani is billed as Donald Trump’s private lawyer. And sure, he has a law license. But not everything everyone who has a law license does is lawyering. I went duck hunting with my dad last weekend, and nobody said I was acting as his personal lawyer by going on a duck hunt with him. But they might as well have, because that is pretty much what almost everyone in the media is doing with Rudy Giuliani.

Let’s look at the ABA’s draft model definition of the practice of law. It says:

(1) The ‘practice of law’ is the application of legal principles and judgment with regard to the circumstances or objectives of a person that require the knowledge and skill of a person trained in the law.

Now, there is a lot of nuance to what exactly constitutes the practice of law, and the precise definition varies by jurisdiction. Deciding whether or not someone is engaged in the practice of law is not always easy. But consider the ABA’s presumptions as to when a person is in fact practicing law:

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(c) A person is presumed to be practicing law when engaging in any of the following conduct on behalf of another:

(1) Giving advice or counsel to persons as to their legal rights or responsibilities or to those of others;

(2) Selecting, drafting, or completing legal documents or agreements that affect the legal rights of a person;

(3) Representing a person before an adjudicative body, including, but not limited to, preparing or filing documents or conducting discovery; or

(4) Negotiating legal rights or responsibilities on behalf of a person.

Let’s see… no, I don’t see digging up dirt on a person’s political opponent on there. I don’t see soliciting foreign interference in an American election or fueling a baseless conspiracy theory for political gain. I definitely don’t see going on cable news every night to lie and contradict yourself in the same breath.

A nifty trick for determining if something is the practice of law is looking at whether someone who is not a lawyer can do it without getting into trouble (trouble from the jurisdictional licensing authority, anyway). There are plenty of non-lawyers who go on cable news shows to parrot Trump’s lies, who try to get foreign help in smearing Trump’s political rivals, and who spread Trump’s nonsense conspiracy theories. None of that is the practice of law, and just because Rudy Giuliani is the one doing it does not make it the practice of law.

Even if we give Rudy Giuliani the benefit of the doubt and accept his explanation that his adventure in Ukraine was for the purpose of conducting an investigation to defend his client, that’s still not something that is the practice of law. Lawyers can investigate things, and certainly do, but a lawyer’s investigation is more poring over documents under harsh fluorescent lighting (see the “conducting discovery” presumption) than it is international espionage in the field. If I need something investigated in the field, I have a PI for that, who is much better than I am at finding people and following them around, and bills at a much lower hourly rate than I do. When my PI comes back from a job, I listen to what he has to say and read his report, but I don’t ever accuse him of practicing law without a license.

So, I hope that anyone in the media who reads this will at least consider ceasing to refer to Rudy Giuliani as Trump’s personal attorney. He may be acting as Trump’s political operative, he may be acting as Trump’s spokesperson, there is even a good case to be made for calling him Trump’s Propaganda Minister, but he is definitely not acting as Trump’s lawyer.

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Calling Rudy Giuliani Trump’s lawyer just because he has a law license might seem harmless, but for a lot of members of the public, seeing Rudy Giuliani on TV is currently the extent of their involvement with the legal profession. When people start to think that is what lawyers actually do, it degrades the value of a law license for all the real attorneys out there. Even worse, it further degrades collective faith in the justice system. Lawyers are supposed to be officers of the court. While it’s perfectly fine for people who have law degrees and law licenses to move into other professional fields, you don’t get to pretend you’re still being a lawyer once you’ve become the day manager at Caribou Coffee. That’s not what lawyers do. People shouldn’t be given the impression that it is.

Jonathan Wolf is a litigation associate at a midsize, full-service Minnesota firm. He also teaches as an adjunct writing professor at Mitchell Hamline School of Law, has written for a wide variety of publications, and makes it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at [email protected].

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