Passing a Very Low Bar

Representing very important people like the president is a serious job. Is it ever ok to come to work wasted?

Every week in my newsletter, I answer a legal question from readers. This question comes from Nancy aka my mom. HI MOM!!!

“Should your attorney be sober and present? What do you do if you suspect that your attorney is shit-faced?”

She included a link to this article: Rudy Giuliani had three triple Scotches in 90 minutes hours before infamous hair dye-dripping press conference, ex-Overstock CEO claims as he unloads on Donald Trump’s ‘s***-faced’ lawyer

Excellent question, Mom! The image of Rudy Giuliani sweating bullets, brown substance pouring down his temples, will be seared into our collective memory for years to come. I imagine my children will someday ask, “Was that a real thing that really happened?”

“Yes,” I’ll be forced to answer. “It was all too real.”

According to a witness, America’s Mayor “imbibed heavily hours before” that press conference. The witness also wrote that, “Almost every evening, and many early afternoons, Rudy was s***-faced.” Granted, many times, Rudy was not in court. Still, lawyers are held to certain ethical standards regardless of where they are. Let’s address each of these questions in turn.

Should your attorney be sober and present?

In short, yes. It’s generally a good idea to show up to work sober, lawyer or not. However, there is an unfortunate history of lawyers coming to court completely wasted or even sleeping during trials and facing few, if any, consequences. The Marshall Project, a nonpartisan, nonprofit news organization covering criminal justice issues, collected ten stories about lawyers engaged in PWI — practicing while intoxicated — and the unfortunate outcomes for their clients.

Case after case shows marginalized people convicted of crimes with completely drunk lawyers as their only defense. And the worst part? Appellate courts upheld the convictions, leading, in many cases, to the defendants being executed.

This is primarily because the standard for “ineffective assistance of counsel” is incredibly high. Outlined in the 1984 Supreme Court case Strickland v. Washington, in order to overturn a conviction due to bad lawyering, a defendant has to show (1) that their trial lawyer’s performance fell below an “objective standard of reasonableness” AND (2) “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Usually defendants have no problem proving the first half when their attorneys acted egregiously. It’s the second part that trips them up. Many appellate courts say, sure, your lawyer literally walked into the wrong court room and had a BAC of .11, but there is no probability that the case would have gone differently had he been sober. Sorry! Conviction upheld.

It is important to note that Rudy was not providing criminal defense in his role as our former president’s lawyer. He was giving speeches outside of a landscaping company and farting during a Michigan hearing. (NOTE: Farting in court is not illegal, and if I have anything to do with it, it never will be!)

Whether he was in court or not, Rudy is an attorney licensed to practice in New York, and, as such, his behavior is governed by the New York Rules of Professional Conduct. One rule that may apply to his allegedly being drunk at the press conference is Rule 8.4(h) which states, “A lawyer shall not… engage in any other conduct that adversely reflects on the lawyer’s fitness as a lawyer.”

But wait, you may say. That presser didn’t happen in New York! It unfolded on live TV from the headquarters of the Republican National Committee in Washington. What business does New York have disciplining actions that happened in Washington? Good catch, gumshoe! That doesn’t necessarily matter for attorney discipline.

Rudy flew around the country doing all manner of wacky things, but where’re he roamed/farted, the NY Rules still applied to his conduct. New York’s Rule 8.5 states, “A lawyer admitted to practice in this state is subject to the disciplinary authority of this state, regardless of where the lawyer’s conduct occurs.”

Which brings us to the second half of the question — What do you do if you suspect that your attorney is shit-faced?

Attorney oversight in New York is meted out by four intermediate courts across the Empire State. One scholar has argued that this separation of authority creates inconsistent application of the professional rules. That same scholar also read hundreds of attorney disciplinary cases over the course of several decades and found two things: (1) not only did it take an excessive amount of time for decisions to be rendered, but (2) after the courts found misconduct had occurred, it was incredibly difficult for the public to see the disciplinary records of those lawyers.

In short, the system is flawed.

The whole reason that lawyers are held to a higher standard than everyone else is the great power we wield and authority we command. If the strict standards of professional conduct are meant to protect the public, they should be more expediently implemented to achieve that goal. And once they are implemented, the public should be able to easily access the results.

Giuliani may have some time before being disbarred due to the slow turning of the wheels of attorney discipline. However, the process is already moving for ol’ Rudy. New York state Sen. Brad Hoylman has filed a complaint with the appellate division, citing Giuliani’s “rampant and egregious violations of the Rules of Professional Conduct,” as well as his “complicity” in the insurrection on January 6.

Additionally, a group called Lawyers Defending American Democracy (“LDAD”) also filed a 49-page complaint with the attorney grievance committee on January 29, citing Giuliani’s prior behavior, including times he has “invoke[d] and abuse[d] the judicial process, lie[d] to third parties in the course of representing clients, or engage[d] in conduct involving dishonesty, fraud, deceit, or misrepresentation in or out of court.”

The latter half of the LDAD complaint is an appendix of Giuliani’s public statements in chronological order with screenshots and hyperlinks. It cites the claims Giuliani made at the hair-dye presser but makes no mention of his allegedly inebriated state.

The New York State Bar Association, a voluntary professional organization, has also taken steps to remove Giuliani, but not for his alleged drinking. That investigation is for his role in the January 6 insurrection as well as “hundreds” of complaints that came in since the election. But the NYSBA doesn’t actually discipline lawyers. It is a voluntary association, so its investigation is more ceremonial than disciplinary. Nevertheless, the NYSBA calls it a “historic inquiry” which sure makes it sound important.

In short, lawyers shouldn’t show up to work drunk. At minimum, it likely violates the rules of maintaining the integrity of the profession and providing zealous advocacy for our clients. If you suspect your lawyer is drunk? You can make a complaint to the bar. The process varies based on what state you’re in. The likelihood of appealing on a claim of ineffective assistance of criminal defense counsel, though? Pretty low, unfortunately.

On more somber note, as many as one in five lawyers is a problem drinker — twice the national rate, according to the American Bar Association. If you’re a lawyer, judge, or law student who is struggling with alcohol, there are resources to get help. Most state bar associations provide a “lawyers assistance program” that provides confidential help for dealing with substance use issues. If Rudy really needs help with his drinking, let’s hope he gets it sooner than later.

I hope that answers your question, Mom! Thanks for sending. I love you!

Got a question? Submit it here. They can be legal what-if questions, questions on current events, or questions about the legality of actions in TV shows or movies you’ve seen. I never ever want to answer your personal legal questions, so don’t send those. Love you, but I don’t do that.

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NOTE: The opinions, language, findings, conclusions, or recommendations expressed are Heather’s alone and do not necessarily represent the official position or policies of her employer or anyone else who may be affiliated with her. Don’t blame them. This is all on me.

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