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Why Rudy Giuliani is a defense attorney's worst nightmare

Giuliani is living proof this whole "zealous representation" has to have its limits.

Rudy Giuliani has had a tough couple of years. Indicted by Fulton County District Attorney Fani Willis this summer alongside Donald Trump and 17 others, he’s spent the past week in Washington, D.C., court in the final stage of the civil defamation trial brought by Georgia election workers Ruby Freeman and Wandrea “Shaye” Moss. Giuliani’s now-infamous comments about Freeman and Moss were highlighted repeatedly during the House’s Jan. 6 hearings, calling attention to the human cost of the plot to overturn the 2020 election.

Now we know the monetary costs as well, after a jury awarded Moss and Freeman nearly $150 million in combined damages on Friday.

You would think Giuliani might be motivated to make different choices. On the other hand, poor choices are why Giuliani has so many legal problems to begin with.

With so many overlapping legal problems, you would think Giuliani might be motivated to make different choices. On the other hand, poor choices are why Giuliani has so many legal problems to begin with. So it’s not too surprising that he early and often drew the ire of the judge in D.C. As I’d bet most criminal defense attorneys will tell you, clients tend to lack the self-awareness needed to connect their behavior with their legal predicaments. Instead, too many people behave like Giuliani and perceive the world as unfairly aligned against them. Even when Giuliani engages in self-sabotage, he likely doesn’t see it that way.

The problems for Giuliani started back in August, when U.S. District Judge Beryl Howell found Giuliani civilly liable due to the “willful shirking of his discovery obligations.” When Giuliani subsequently failed to appear at a pretrial hearing in early December, Howell expressed her frustration with Giuliani’s lawyer Joseph Sibley. A court order required the parties to be present at all court events, she noted, including that hearing.

At the time, Sibley took responsibility for his client’s absence, claiming he had innocently misread the order. Something about that explanation seems a little off. Assume it’s true that Sibley did misread the court’s order. Giuliani is a former U.S. attorney. Even if Sibley misread the order, why didn’t Giuliani un-misread it?

The judge for her part was unimpressed, remarking that it was “not a good start to the trial.”

It didn’t get better.

Once trial was underway, Giuliani spoke to reporters outside the courthouse, insisting that the same plaintiffs suing him for defamation had “engaged in changing votes.” Howell again admonished Giuliani’s attorney, pointing out that his client is on trial for defaming the plaintiffs — and Giuliani was apparently outside defaming the plaintiffs.

Sibley’s response? “I can’t control everything he does.”

It’s true.

There’s a misperception, held by a lot of judges and prosecutors, that attorneys have complete control over their clients. They don’t. This isn’t particularly surprising — most criminal and civil defendants are defendants because of their bad judgment. Hiring an attorney after they were indicted or sued won’t magically improve their decision-making.

There are many kinds of “difficult” clients. The most common kind of difficult client is the one who is a constant critic of his own lawyers. Donald Trump has frequently and openly complained about various current and former members of this legal team. He’s the kind of client that demands an (unreasonable) outcome, and blames the lawyers when he can’t get what he wants.

Other challenging clients refuse to follow advice. A close cousin of this problematic personality is the client who just can’t stop getting into new trouble. Giuliani is both. This kind of client may not antagonize or criticize his lawyers, but he’s definitely making their job harder by undermining his own case — and their work — on a daily basis.

This kind of client may not antagonize or criticize his lawyers, but he’s definitely making their job harder by undermining his own case.

In addition to the D.C. lawsuit by Freeman and Moss, Dominion Voting Systems and Smartmatic have also sued Giuliani for defamation. Given the sums awarded on Friday, he faces certain financial ruin now precisely because of his ill-advised commentary. It is incredibly predictable that he would double down on said commentary.

Judges often hold lawyers responsible for their clients’ screw-ups, even when it’s obvious that it’s the client who is the screw-up. And Sibley, like a good defense attorney, is trying to deflect blame where he can, like when he told Howell he had misread a trial order.

Here’s a little secret of the defense bar: Defense lawyers often have to fall on the sword for their clients. Sometimes they do it for noble reasons. Sometimes they do it because getting a client fined or jailed for contempt is just as much of a headache for the lawyer as it is for the client.

But there is a line defense attorneys should not cross. Taking the blame for the client failing to appear at a hearing is one thing. But Giuliani’s lawyers probably know enough not to take the blame for his impromptu press conferences on the courthouse steps. A defamation defendant defaming defamation plaintiffs at the defendant’s defamation trial — no lawyer is going to leap on that grenade. (And Giuliani’s comments were almost surely against his lawyers’ advice.) His lawyers could even face professional discipline, or a lawsuit of their own, if they are seen endorsing any defamatory comments.

Rudy Giuliani is living proof this whole "zealous representation" has to have its limits.

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