Legal Ethics

Update: Giuliani Still Not Real Lawyer, Teases Attorney-Client Privileged Disclosure As 'Insurance' Against Trump Treachery

You don’t need a law degree to know what someone means when he claims he has 'insurance' against someone throwing him 'under the bus.'

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(Photo by Alex Wong/Getty Images)

If you haven’t had a problem client or 10, you haven’t been a lawyer very long. But even baby lawyers fresh out of law school are experienced enough to know you can’t tell a problem client, “All those deep dark attorney-client privileged secrets I learned in representing you are hitting the presses if you don’t treat me right.”

Yet Rudy Giuliani, who has theoretically been a lawyer for half a century, does not seem to grasp this. Maybe his ignorance makes sense. Two months ago, I wrote a pretty well-received piece about how Rudy Giuliani is not acting as an attorney, and hasn’t been for some time. He is not Donald Trump’s private lawyer: he is Trump’s political goon and conspiracy theory curator. Since nothing Giuliani has done in years is actually the practice of law, maybe it’s only rustiness to blame for him having no clue what legal ethics are anymore. Still, it sometimes seems he knows more about the attorney role than he’s letting on, at least when it is convenient for him. Giuliani playacts as a lawyer to use the shield of zealous advocacy for a client when it suits him, while ignoring the serious obligations of the profession when it doesn’t.

Rule 1.6 of the Model Rules of Professional Conduct says:

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

The Model Rules are just that, models, but every jurisdiction has more or less the same version of Rule 1.6 enumerated somewhere. The attorney-client privilege is a common law evidentiary concept and is technically distinct from Rule 1.6, but for the purposes of this discussion, we can consider them related enough to discuss concurrently. The gist is, if you are a (real) lawyer, you don’t get to go around spreading information “relating” to the representation of a client. That is a pretty broad prohibition, and a lawyer could quite easily be both breaching ethical duties and violating attorney-client privilege by carelessly disclosing information.

Of course, there are those paragraph (b) exceptions, and there are quite a few of them. We won’t go through all seven in the interests of space and relevancy, but check out 1-3 and 5:

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(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;

…

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;

So, if Giuliani is really representing Trump as a private lawyer, as he, Trump, and hundreds of media outlets have repeatedly claimed, Giuliani can release information he learned in the course of this representation if he reasonably believes someone’s life is in jeopardy, if he is reasonably certain the client — Trump — is going to commit or has committed a harmful crime or fraud, or to establish his own defense to charges against him which arise out of the representation.

Think about that for a moment. If Giuliani wants to release information gleaned from his purported representation of Trump, under the Rules, it has to be because he knows there is some serious weight behind charges leveled, or about to be leveled, against Trump, himself, or both.

In November, Giuliani told multiple media outlets that he had “insurance” if Trump turned on him. Subsequently, Giuliani first tried to float the moronic idea that the “insurance” he was talking about was actually dirt on the Bidens, which makes no sense, because that was what Giuliani was after in the first place, that would help rather than harm Trump and so would provide no leverage to keep Trump from turning on Giuliani, and Giuliani would have run any dirt he had on the Bidens up a flagpole months ago if he actually had it. Next, because his own (actual) lawyers made him do it, Giuliani decided to try out the lie that his claim of having “insurance” against Trump’s treachery was merely a joke.

You don’t need a law degree to know what someone means when he claims he has “insurance” against someone throwing him “under the bus.” Giuliani meant that if Trump turns on him, he’s going to air out some of the skeletons he’s uncovered in Trump’s closet.

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Which is not how being a lawyer works. There are two options here. Either Giuliani is a real lawyer and believes he, Trump, or both may have committed or are about to commit a crime in the course of this representation, in which case Giuliani should probably just disclose whatever he knows rather than hang on to it to protect himself alone. Or, Giuliani is a fake lawyer, and does not know or does not give a damn about probably the most foundational tenet of legal ethics. Assuming it’s the latter is actually giving Giuliani the benefit of the doubt.

I really think Giuliani doesn’t know that you can’t blackmail clients into doing what you want by threating to release information you learned in the course of representing them. Because he’s not a real lawyer, and he hasn’t been in quite some time. Every moment we pretend otherwise makes our profession, and every individual lawyer, less respected and less valuable to society.

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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