Bad Lawyers
It’s a funny thing, but many of my friends who are quickest with shady lawyer jokes are also the ones who spring to the defence of Rudy Giuliani and Sidney Powell. Except for my lawyer friends, that is, where nobody has a kind word to say about these two.
Let me say at the outset that I have all kinds of sympathy for Powell and Giulani at a personal level. Both of them are tragic figures, otherwise intelligent enough individuals who have thrown away their careers and reputations. It’s painful to watch.
But at a professional level, their excoriation and disbarment is not only proper, it’s essential. And essential not just for the legal profession, but for society as a whole. Let me explain.
Underpinning and upholding our democratic societies is something called the Rule of Law, that is, the assurance that no one man or woman, including a king, is above the law. No matter how important we may be, or think we are, we must bend the knee to the law that we have all agreed will govern our behaviour.
The courts are, at the end of the day, the final arbiters and upholders of the rule of law, and at the pinnacle of the courts are the judges. Human beings, yes, with all their foibles, but nevertheless sworn to uphold our laws to the best of their ability, and to arbitrate our disputes.
By and large, judges are an admirable lot. In my nearly four decades of practice I got to know a lot of judges up close at their wartiest, sweatiest reality, and with only a very few exceptions, these are all men and women of the highest moral and intellectual calibre. Decent, honourable, patient, good humoured, often kindly. I can’t say enough.
But the judges can’t do it all on their own. They rely on an enormous and complex apparatus, at the front of which are the lawyers. Lawyers are, literally, officers of the court. While each lawyer has a sworn duty to his or her client, they have a paramount duty to uphold the law and its dignity.
As officers of the court, the lawyers’ duty to uphold and advance the law has many facets, but most of them have to do with respect. Respect for the law, for the judge, for the other lawyers, for the clerks and officers, for the time of others, for clarity and purposefulness of language, but mostly, respect for the truth.
The truth is not always easy to find in court proceedings– in fact, that’s why we have trials in the first place. But finding the truth cannot happen when the lawyers are willing to engage in patent untruths, or even shadings of the truth. While it is our duty to uphold the interests of our clients, that duty is subservient to our duty to uphold the search for the truth.
Three of the ways that lawyers support the search for the truth is by refusing to advance stories we know to be untrue, by avoiding “sharp practice”, and by refusing to advance arguments we know to be bogus.
While the lines may not be as clear as we would like them to be, and while lawyers frequently quibble about whether you’ve gone a bit too far, there are cases where it is beyond clear-cut, cases where the transgression is so obvious and so apparent that the righteousness of our judicial system demands that the transgressor be called out and punished.
Sidney Powell, Rudy Giuliani (and others) crossed the line by a country mile. Their disregard for the truth, their advancement of scurrilous theories (the Kraken? Italian satellites? Seriously?), their persistence, their willingness to advance “evidence” without weighing it, and their shopping for one judge after another hoping to at last find one dumb enough to buy their horsecrap, all taken together yield only one result: they are a menace to our rule of law, and are no longer entitled to remain as officers of the court.
It’s such a pity. Both are intelligent people, both worked hard to become lawyers, both had careers of some note– Giuliani was once “America’s Mayor”. None of that matters. When an officer of the court becomes an enemy of the court, they have to go.