This is hard. Very hard. My feelings toward Rudy Giuliani have been decidedly ungood since the 1980s, and they haven’t gotten any better since, which makes him a test case for whether I can not join the schadenfreude chorus singing hallelujah at the New York Appellate Division, First Department’s interim suspension of his license to practice law.

For the reasons that follow, we conclude that there is uncontroverted evidence that respondent communicated demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer for former President Donald J. Trump and the Trump campaign in connection with Trump’s failed effort at reelection in 2020. These false statements were made to improperly bolster respondent’s narrative that due to widespread voter fraud, victory in the 2020 United States presidential election was stolen from his client. We conclude that respondent’s conduct immediately threatens the public interest and warrants interim suspension from the practice of law, pending further proceedings before the Attorney Grievance Committee.

I won’t cry about this. Bad things happen to good people, which is a tragedy. This isn’t a tragedy, and Rudy isn’t a good person.

Rudy never was a good person, even under “normal” scrutiny.

But that does not mean two things: First, that even the likes of Rudy Giuliani isn’t afforded his rights under the First Amendment, and second, that his exercise of those rights is so inherently dangerous as to warrant immediate suspension from the practice of law.

In a WaPo op-ed, lawprofs Bruce Green and Rebecca Roiphe point out that the rhetoric of the First Department panel is expansive, that Rudy “made ‘demonstrably false and misleading statements to courts, lawmakers and the public at large.’” Note that the list includes courts, lawmakers and the public at large. Lying to courts is, without question, an ethical violation. Lying to lawmakers may be, if it’s given in testimony under oath. But lying to the public at large?

Except for one assertion about the status of a complaint, which he later corrected, Giuliani is not accused of improprieties in court proceedings where he functioned as an advocate. For the most part, the court focused on Giuliani’s public statements and justified its interim suspension by citing the risk that Giuliani would continue disseminating “false statements in the media” while the disciplinary process ran its course.

There is little doubt that Rudy’s lying to the public is dangerous. He fed lies to a group of credulous believers, some of whom acted upon it. Some of whom acted upon it violently. But does that relate to his practice of law?

Lawyers have the right as private citizens to engage in political debate. This includes a right to lie about the government — not because lies are desirable, but because it is too dangerous to give the state the power to determine which statements are true or false when it comes to political speech. Robust political debate would be chilled because people would fear misspeaking. Efforts to expose government wrongdoing would be abandoned out of concern about retribution.

To encourage criticism of the government, the First Amendment gives the public breathing room. Lawyers need it too. They should not have to choose between a law license and the license to engage in the same vigorous political speech as other citizens. It is true that lawyers are officers of the court, but they have also historically played an important part in holding government to account. It would be a shame to strip them of this powerful role.

There’s an argument to be made that lawyers are lawyers all day and night, and in all things they do, such that everything we do reflects on our ethics and fitness to practice law. Indeed, that’s part of the underlying rationalization for rules like Model Rule 8.4(g), which would put our license at risk for a comment someone found offensive at a cocktail party, not to mention speaking to the media. If we’re politically incorrect, someone might file a grievance against us. It can happen.

If we argue for a political position and perhaps get a bit too exuberant in our use of hyperbole to push for a cause, or just argue a point that “everybody knows” isn’t true even if we believe it is, our ticket could be pulled. How far should the disciplinary committee’s authority over lawyers extend?

This disciplinary proceeding concerns the professional restrictions imposed on respondent as an attorney to not knowingly misrepresent facts and make false statements in connection with his representation of a client.

This language, “in connection with his representation of a client,” goes well beyond a lie told to a court, which is clearly within the ambit of attorney discipline, but lies told to anyone about a case, a client, and the cause.

The court pointed out that even when a lawyer is speaking in public not in connection with a proceeding, his lies may be particularly harmful because they erode public confidence in the legal profession’s integrity and tarnish the legal profession’s reputation, and because speaking with the authority of an attorney makes lies more credible, magnifying their harm.

There’s merit to this point. Lawyers can do a great deal of harm by lying, and by misstating the law, to the public with the credibility that comes with authority. It’s despicable and I rail against it regularly. But condemning it isn’t the same as disciplining, suspending, disbarring, a lawyer for it. That’s where the mission creeps beyond the limits of its justification, lying to a court or client, and into the realm of societal free speech control. It’s not to say that bad lawyer speech isn’t bad, but that bad lawyer speech beyond the practice of law is free speech, a right even lawyers retain.

And finally comes the irony of this interim suspension, which can only be justified out of fear that Rudy will walk into court as a lawyer and lie to an unaware judge again.

Of course, suspending Giuliani from law practice may prevent him from representing clients in court cases and elsewhere, but it will not keep him off the radio, podcasts or other media, where he has a First Amendment right to speak as a private citizen — including the right to make false statements.

The First Amendment gives us the right to lie*, together with the right to say provocative things in furtherance of our causes that may offend others and be, well, undignified. But if Rudy can’t do it, neither can I. Neither can you. I willingly gave up certain rights when I took my oath at the Appellate Division, First Department. I did not, however, give up all right to speak, and if I want mine, then I have to give Rudy his, as brutally painful as that may be, and even if Rudy wouldn’t do the same for me because he is still decidedly ungood.

*Term and conditions apply.