ON PROFESSIONALISM, PART 2

(Posted June 25, 2021) Early in this site’s history, I posted an essay entitled, “On Professionalism.” It’s a reasonably close transcript of a speech I had given at the Wiggins School of Law, part of its series of professionalism lectures. It remains one of the handful of essays of which I’m proudest.

Developments this week move me to address this topic again, as one key aspect of professionalism is very much in the news. I recognize that you come here for news and analysis relating to appeals; but man (and woman) does not live by appeals alone.

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Here’s the oath that we attorneys commit to when we’re admitted to practice law: “I do solemnly swear or affirm that I will support the Constitution of the United States and the Constitution of the Commonwealth of Virginia, and that I will faithfully, honestly, professionally, and courteously demean myself in the practice of law and execute my office of attorney at law to the best of my ability.”

Look at that string of adverbs. Look carefully. If you’re a practicing lawyer here, you swore to meet each of those obligations. It isn’t a conditional obligation – “I’ll behave courteously unless I can get away with being a jerk” – it’s mandatory.

One of the adverbs is honestly. Honesty is one of the foundations of professionalism. Of all professional oaths, ours is one of the few of which I’m aware that require honesty. It isn’t in the Hippocratic Oath that physicians embrace. Certified public accountants promise to “be straightforward and honest” in their professional and business relationships, and military enlistees and officers arguably accept a duty of honesty, as their oath refers to the Uniform Code of Military Justice. But there are very few others, at least as far as I’m aware.

Honesty is a requirement in the Rules of Professional Conduct, too. It’s right there in Rule 4.1: “In the course of representing a client a lawyer shall not knowingly … make a false statement of fact or law ….” Note that this isn’t limited to in-court situations – it applies wherever you’re representing a client. That can include talking to a reporter on the sidewalk outside the courthouse, or giving an interview on television. You’re expected to be honest. Always.

Despite this, the world is full of crooked-lawyer jokes, giving society the impression that a lawyer will lie whenever it’s advantageous for him or his client. But this, for the most part, is fiction. Dishonest lawyers make news precisely because they’re so rare. Sensible lawyers understand that their personal credibility is essential to the practice of law. Your believability puts a ceiling on your effectiveness as an advocate. You want that ceiling to be sky-high, and lying only lowers it.

Here’s an illustration, courtesy of my appellate pal George Somerville, now basking comfortably in the confines of a 9-to-5 retirement. He tells the tale of an oral argument in the Supreme Court of Virginia in the early 1990s. Justice Barbara Keenan was the new justice on the block back then, and occupied the far right seat on the bench (from our perspective, anyway). A few moments after a lawyer rose to argue a case, Justice Keenan felt a nudge; the justice next to her handed her a note. It was from Chief Justice Harry Carrico, and read, “This lawyer misrepresented the facts in a case in this Court in 1962.”

As I said, sensible lawyers know never to burn their personal credibility. This is part of the reason why State Bar ethics investigations are comparatively rare. Of the roughly 32,000 active members of the Virginia State Bar, there are active Bar investigations on only about 1%. The other 99% of us manage to steer a straight course, including being honest.

And that brings us to Rudy Giuliani. You’ve seen the news that yesterday, an appellate court in his home State of New York handed down a unanimous ruling that suspends his license to practice law, pending the outcome of a full disciplinary trial. A pendente lite suspension is a rare thing; in most cases that don’t involve criminal conduct by the lawyer, the accused is allowed to continue to practice while the disciplinary proceeding unfolds.

But here, the court rules that the Attorney Grievance Committee “has made a showing of an immediate threat to the public, justifying respondent’s interim suspension. We find that there is evidence of continuing misconduct, the underlying offense is incredibly serious, and the uncontroverted misconduct in itself will likely result in substantial permanent sanctions at the conclusion of these disciplinary proceedings.”

That’s powerful language. What was the underlying “incredibly serious” offense? Dishonesty. The court lays out a string of false statements that Giuliani issued in a variety of forums. It finds that he lied on the radio, that he lied in podcasts, that he lied in the famous Four Seasons Landscaping press conference, that he lied in an appearance before a state legislative committee, and that he lied in court proceedings, all in the course of his representation of his clients: the former president and the Trump campaign. The court turns aside a destined-to-fail effort by Giuliani to claim that he has a First Amendment right to say what he said.

While the First Amendment permits lying without criminal sanction – see the Stolen Valor Act decision from SCOTUS a few years ago – it’s different with lawyers. Ordinary citizens don’t voluntarily take an oath of honesty, and subject themselves to the jurisdiction of State Bar ethics investigators.

Giuliani’s very public misconduct hurts us; all of us. It fuels the false narrative that ours is a dishonest profession. This is entirely aside from the “immediate threat to the public” that the court found; the judges there refer to the tendency for Giuliani’s words to cause unrest or worse, such as what we saw on January 6 at the Capitol. I’m talking about a lesser but still important danger, as it affects how society views our profession.

This case illustrates the boundary between practicing in the court of public opinion and practicing in a court of law. For nonlawyers, it’s possible to say anything you want, no matter how daffy or detached from the truth, in the court of public opinion. There, the worst that can happen to such a speaker is that he’ll be disbelieved or maybe ostracized. In a court of law, though, there are penalties for not telling the truth: contempt, sanctions, even a perjury prosecution.

Yesterday’s ruling illustrates that we lawyers are bound by our oaths of honesty even when we appear in that court of public opinion. If we’re to be effective as a profession, it has to be that way. Our commitment to professionalism isn’t situational; for the public to have confidence in us, we have to behave as professionals everywhere, all the time. This includes honesty in public settings.

“Be the change that you wish to see in the world.” This wonderful advice is incorrectly attributed to a lawyer named Mohandas Gandhi, the Mahatma. What he actually said is more nuanced, but let’s go with that original text for our purposes. If you want the legal profession to get the respect that it deserves, that the nation needs it to have, start within. Recall those adverbs, and commit to living them – not just in court; not just in pleadings and briefs; but in your contacts with society. This is how we rinse the foul taste of the Giuliani affair from our mouths.