Leave your rights at the door
Jeff Cooper relates an interesting case of a lawyer suspended from the practice of law for 30 days by the Indiana Supreme Court for having included "intemperate" remarks in his appellate brief. The offending language:
The Court of Appeals' published Opinion in this case is quite disturbing. It is replete with misstatements of material facts, it misapplies controlling case law, and it does not even bother to discuss relevant cases that are directly on point. Clearly, such a decision should be reviewed by this Court. Not only does it work an injustice on appellant Michigan Mutual Insurance Company, it establishes dangerous precedent in several areas of the law. This will undoubtedly create additional problems in future cases.
Indeed, the Opinion is so factually and legally inaccurate that one is left to wonder whether the Court of Appeals was determined to find for Appellee Sports, Inc., and then said whatever was necessary to reach that conclusion (regardless of whether the facts or the law supported its decision).
In the Matter of Michael A. Wilkins
The Court stated:
The respondent's comments in footnote 2 [the second paragraph in the quote above], however, are not even colorably appropriate. In footnote 2 of the "Brief in Support of Appellant's Petition to Transfer," the respondent suggested that the judges on the Court of Appeals may have been motivated in their decision making by something other than the proper administration of justice, and, in fact, suggested unethical motivations. We find that his comments in footnote 2 violated Prof.Cond.R. 8.2(a) because they were made with reckless disregard as to the truth or falsity concerning the integrity of a three-judge panel of the Court of Appeals.
The Supreme Court, however, provided no analysis of the truth of the statement; it seems to have simply assumed that the accusation could not in fact be true. I see no basis for an analysis of "reckless disregard [for] truth or falsity" in this comment. This was an opinion of the attorney, a display of what one of the dissenters called "rhetorical hyperbole, incapable of being proved true or false". The attorney had suggested that the Court of Appeals seemed "determined to find" for the opposing party. This may well have been a legitimate conclusion to draw based on his position that that court had misstated facts and ignored controlling law. That does sometimes happen. On occasion, judges are motivated by something other than dispassionate legal analysis.
How far free speech rights may be curtailed for lawyers and judges is an ongoing though not very visible issue. The spectrum of issues ranges from what restrictions may be placed on campaign materials for those seeking judicial office (Republican Party of Minnesota v. Kelly, decided this year by the U.S. Supreme Court) to enforcement of contempt of court citations against unruly and disruptive attorneys in the trial setting. In this state, grievances have been filed against Geoffrey Fieger for his brash and intemperate remarks about Michigan appellate judges. See the Detroit News' Michigan Briefs section from April 19, 2001, which stated:
Fieger, while hosting a radio program in 1999, used an obscenity to refer to Court of Appeals Judges Richard Bandstra, Michael Talbot and Jane Markey, and likened them to Nazi leaders.
In my view, the only justifiable basis for limiting speech by attorneys is the legitimate interest in keeping the judicial process running in an orderly fashion. Thus, a sanction against an attorney spewing invective against a trial judge, either in court or out of court while a trial is proceeding, would usually be proper, while action against the same comments made after the case is over may not be. An appellate court could properly sanction an attorney for unnecessarily including offensive language in a brief (such as "The trial judge was an utter asshole", even if true). In this case, however, the attorney did no more than include language that was sharply critical of the court below, though couched in lawyerly terms.
I think the Indiana Supreme Court went too far in its efforts to punish this attorney. I hope he appeals this sanction to the U.S. Supreme Court.
1:56:33 PM
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