I will admit to being highly critical of Rudy Giuliani’s representation of President Donald Trump for many years (here and here and here and here and here and here and here). He has consistently made statements in interviews that seem diametrically at odds with the interests of his client and his comments have repeatedly forced later corrections or clarifications by the White House or himself. This history led to his prior firm severing ties with him. However, despite that history, nothing prepared me for the video posted by the Recount showing Giuliani breaking off from detailing allegations against Hunter Biden to shill for cigars and gold coins. To be honest, the video comes across as Lionel Hutz of the Simpsons meets Offer Shlomi of ShamWow. Some have raised renewed questions of whether he is helping or hurting his legal team. I do not view this commercial as a bar violation though it raises an increasing issue over the ethical rules governing dual roles of counsel.
In fairness to Giuliani, this is a commercial in his podcast. It is common for podcasts to have paid sponsors. I am not sure that it is fair to object to Giuliani doing commercials. However, my unease is doing such pitches so in the midst of his representation of the President and his campaign. The commercials undermine the credibility of his case by reinforcing the narrative of Democrats that the election and Biden investigations are all about a media and political marketing campaign. As counsel, you have to consider how such commercial enterprises and appearances will impact your client.
Rule 1.8 states:
(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.
I do not view this as a violation of Rule 1.8. Such pitches for products (while arguing the merits of allegations against Biden) do not directly contradict Trump or his campaign. He is after all arguing the merits of these allegations. However, the pitches can undermine his own credibility and therefore the credibility of the case. (It was an ironic pitch since Giuliani was embroiled in a messy divorce in which his ex-wife accused him of spending $18,000 on cigars alone)
Ironically, President Trump was accused of shilling his own products during the campaign. However, he was not counsel in pending cases.
The question is whether such pitches are appropriate for lawyers like Giuliani. Again, I would argue that it does not violate bar rules. Indeed, I have been critical of the weaponization of bar complaints recently by Democratic leaders and legal experts, including a bar complaint filed against Trump campaign counsel Joe diGenova.
Yet, such pitches can undermine a case or a client. There are often questions raised when counsel engages in fundraising campaigns as with the recent efforts related to Kyle Rittenhouse. I was critical of such fundraising efforts by Michael Cohen and others. It is a tricky balance since pitches for support can impact a criminal case or even fun afoul of court-imposed gag orders. However, there is often a real need for criminal defendants to secure such funding to pay for their defense.
Most recently, St. Louis prosecutor Kim Gardner was taken off the controversial McCloskey case due to her using the prosecution to fundraise.
This is not fundraising for a defense. Giuliani has every right to pursue a career as a commentator and to support himself through such commercials. However, it is the timing that is troubling. The commercials appear to have been running in November with the campaign and expected litigation in the news. He was already counsel for the President. In his favor, President Trump knew Giuliani was a public persona and had such media enterprises. Moreover, plenty of Democratic lawyers work for MSNBC or CNN as analysts and continue to represent clients in high profile litigation against the Administration despite controversial statements in the media. This type of hybrid role is becoming increasingly common, particularly in lawyers with media careers or outlets.
You can judge for yourself.
Here is the video.
As Donald Trump’s personal attorney, Rudy Giuliani knows many of the president’s darkest secrets, with a level of security clearance that only a select few (Trump’s son-in-law) are granted. But he’s also a goo-dripping huckster who gets duped by Borat, gives press conferences next to a sex shop, and now sells cigars and gold coins on his personal YouTube page. I guess that $20,000 a day isn’t cutting it.
As discovered by the Recount, Giuliani interrupted his most recent video, “Joe Biden: Top Of The BIDEN CRIME FAMILY Totem Pole,” to read ad copy for American Hartford Gold and Famous Smoke Shop. It’s the far-right’s Casper Mattress and Bonobos! “If you want a good cigar, go to a good cigar shop. You want the best? Go to Famous Smoke Shop” he said. “Let Famous Smoke deliver your favorite cigars right to your doorstep at America’s lowest prices.” If you visit Famous-Smoke.com/Rudy, you can even get $20 off your first purchase (if you spend at least $99). But it gets better! “Tell them Rudy sent you!” Giuliani reads during the promo for American Hartford Gold. What happens if you tell them Rudy sent you? Basically nothing! But don’t worry, Bill O’Reilly is also on board.
Again, this is the president’s lawyer selling stogies and coins in a YouTube video where he’s otherwise ranting about the Bidens like they’re the Corleone family. I can’t stress that enough. No wonder even Trump thinks he’s “a joke.” Watch the highlights here:
And the entire thing below: