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Legal Ethics and the First Amendment: What Lawyers Can & Can't Say

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Legal Ethics and the First Amendment: What Lawyers Can & Can't Say

Do lawyers give up some of their First Amendment free speech rights when they are sworn into the bar? This course will enlighten lawyers who have been confused about what they can and can’t say publicly while complying with legal ethics rules. We will use real cases and the ABA Model Rules of Professional Conduct to explore where the line is with respect to lawyer advertising, trial publicity, statements to the media, political speech in the courtroom, criticism of judges, and more.

Transcript

Welcome to today's ethics program, Legal Ethics Versus The First Amendment, What Lawyers Can and Can't Say. I'll be your presenter today. My name is Joe Russell. I am a lawyer in the Milwaukee office of the law firm von Briesen & Roper. I'm a litigator. I practice in the litigation and risk management practice group of my firm. I also serve as the firm's ethics lawyer. We have about 200 lawyers in our firm in various offices. So that is my background, but I thought this was an interesting topic, especially in light of the various cultural controversies that lawyers engage in this day and age. Legal Ethics and The First Amendment. I do refer to it as a versus, because there is something of a antagonistic relationship between legal ethics and the First Amendment. And those are the questions that I'm gonna try to explore. What is that relationship like? So let's start with some of the questions that come up that I've had to address in the course of my career, and questions that I just think are interesting to explore. What lawyer "speech" can be regulated? Lawyer advertising, and I put "bad" in parentheses here, because bad, I think we all know that some lawyer advertising is pretty bad and wince producing, cringe worthy, as you might say. Can that be regulated? Trial publicity? Can you say things outside of the courtroom on a pending matter in which you are involved and say things to the media? Or can that be regulated? Political speech in the courtroom? So that's a difference between what you can say outside the courtroom, and what you can say inside the courtroom. Can you say things of political import in the courtroom without being sanctioned? Another question, how far can you go in terms of criticizing judges, or other legal officials, or even the legal system as a whole, without being disciplined or sanctioned? And then what is protected by the First Amendment, if anything? And then finally, all "false" or "untrue" speech. Is everything that you say that is untrue, is any of that protected? Well, that's something that a philosophical question, but you'll see what I mean when I get to that question. And that will be something in terms of the 2020 election and the various lawsuits that certain lawyers have filed seeking to overturn the election. But let's start with lawyer advertising. I wanna go back to the 19th century. Obviously, lawyers were around before the 19th century, but gonna focus on the US, when we sort of had the Wild West of lawyering where there weren't that many established law schools, and the state bars, especially in new states, were, I don't wanna say chaotic or inchoate, but that didn't have a perfect regulatory system, let's say. So the ABA, back in the 1990s, they formed a commission on advertising, and they looked at, they started looking at the 19th century and how unregulated it was, and they concluded that advertising in the 19th century was viewed as a function of commerce in an era of growth, both in the business community and the legal community. In a way justifying that sort of unregulated Wild West quality of lawyer advertising. Well, I would pose to you today that, in the 21st century, that lawyer advertising is pretty much the same thing. It should be viewed as a function of commerce in an era of growth, both in the business community and the legal community. But in any case, going back to the 20th century, or the 19th century, I wanted to focus on Abraham Lincoln, who everybody considers sort of the paragon of ethical behavior, especially with lawyering. So I posed the question, did "Honest Abe" think lawyer advertising was "unethical"? Of course not. Even Abraham Lincoln advertised his legal services as I show you by this small clipping from the "Springfield Newspaper" from 1858 where he announced the formation of his new law firm, Lincoln and Herndon. This was August 5th, and it's a little hazy just because the added function, clipping from such a small paper back from the 1858 period is, you don't get perfect imagery, but it states, "Attorneys and counsellors at law, will practice in the courts of Law and Chancery in the State, Springfield, Illinois." Counselors, as you see, is misspelled, but we won't hold that against Abraham Lincoln because he didn't have much of a formal education. If we go to the next year, 1859, Abraham Lincoln even advertised what we had probably call today client development speeches for which he charged 25 cents. In this case, this was, he was advertising a speech he was going to give on Monday morning, February 21st, 1859. "Will lecture before the Springfield Library Association, at Concert Hall, Monday night, February 21st at 7 1/2 o'clock." So a very quaint phrasing. I'm not sure if Abraham Lincoln actually pocketed this money or if it went to the Springfield Library Association. I did go on to the inflation index calculator, 25 cents in today's money would be about $8. But is this misleading? Another question I pose to you. Abraham Lincoln was never a judge. So the use of the abbreviation for "honorable on" would suggest that he was a judge. Is that misleading? Or perhaps he is abbreviating honest. And he was referring to himself as even Honest Abe back then. But those are questions that I cannot fully answer. Let's move on though to the 20th century. From the 19th to the 20th, we do see a regulatory regime starting to be put into place, and that was led by the ABA, which started criticizing unregulated lawyer advertising, especially with regard to its 1908 Canons of Professional Ethics. Canon 27 in particular provides as follows, quote, "The most worthy and effective advertisement possible, even for a young lawyer, and especially for his brother lawyers, is the establishment of a well-merited reputation for professional capacity and fidelity to trust." Well, that's sounds nice, but if you're a young lawyer, it's hard to rely just on word of mouth in order to build your reputation. But that's what the ABA was suggesting back in 1908, and pretty much most jurisdictions throughout the country began to adopt this sort of critical position on lawyer advertising and began to put strict limits on attorney advertising. Business cards were begrudgingly deemed acceptable by most jurisdictions, but beyond that, there were very strict requirements that lawyers had to deal with, meaning that there was wasn't much lawyer advertising for much of the 20th century. Not until the 1970s did the US Supreme Court start weighing in on the issue, and this was in the context of First Amendment protections for commercial free speech. So this was brought up first in 1976 in the Supreme Court case, Virginia State Board of Pharmacy versus Virginia Citizens Consumer Council, where the Supreme Court began discussing what should and shouldn't be regulated regarding commercial speech. Because the root problem is if we're living in a consumer economy, shouldn't consumers be entitled to as much information as possible to make informed choices? And restrictions on commercial speech actually prevent the dissemination of useful information for consumers. So unless there's a key compelling state interest, commercial speech should have some protections. And as the Supreme Court stated in applying the First Amendment, the regulation of commercial interest, quote, "Is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us." And so, so very interesting thought provoking cases like this begin to crop up in the mid to late 70s. The following year, case specific to lawyer advertising was heard by the US Supreme Court and that was the case Bates versus State Bar of Arizona. You might remember this from your own legal ethics course if you had to take one in law school. There, the Court found that attorney advertising was a form of commercial speech that was entitled to some degree of First Amendment protection. That case involved two young Arizona attorneys who had placed an ad in a Phoenix newspaper in violation of a state rule banning lawyer advertising. Now these attorneys, they were pretty much fresh out of law school, trying to hang out their own shingles, so to speak. And the ad was fairly benign. It just listed the type of services they would provide and the rates or the fees they would charge for providing those certain services. The Courts in reviewing this case, found that the disciplinary rule by which the state bar was trying to discipline and restrict these young attorneys served to, quote, "Inhibit the free flow of commercial information and to keep the public in ignorance", end quote. So that is a bad thing and I think is a fairly common sensical argument and understandable as to why a lawyer advertising should be allowed. So what result did Bates have? Well, there were some hiccups soon thereafter and sort of ironing out exactly what could be restricted and what couldn't. But as long as the advertising was not untruthful or not misleading, then it was protected as commercial free speech. Such was the finding in Zauderer versus Office of Disciplinary Council in 85, 1985, where the lawyer, where the Supreme Court said, lawyers cannot be disciplined for soliciting legal business through print advertising, you know, think phone books and that sort of thing, as long as that advertising contains truthful and non-deceptive information and advice regarding legal rights of potential clients. A little bit earlier than that, the US Supreme Court even said that, quote, "Relatively uninformative advertising is protected speech as long as it is not misleading." So the key thing is, and a lot of people would say this today, that lawyer regulatory systems shouldn't discipline lawyers unless the advertising is false, deceptive or misleading. And that's pretty much the position here. I cite one case from the Florida Supreme Court that "lawyer advertising enjoys First Amendment protection only to the extent that it provides accurate factual information that can be objectively verified." Now, I quoted that because objectively verified can mean, I guess, different things in different contexts. And I wanna show you a few examples of advertising. And this might fall into the category of quote, unquote, bad or cringe worthy lawyer advertising, but it helps us assess what can be objectively verifiable and maybe what should be disciplined or not. So this advertise, this billboard, and I'm just gonna look at billboards. I didn't take these pictures, I just pulled 'em off the internet. This one is from New Mexico by the attorney Robert "Tito" Meyer. It states, as you see, "Trust Me, I'm a Lawyer!" And then in parentheses "My Dogs Do." And then there's this cute photo of, I'm not that great with identifying breeds of dogs, but I think it's a beagle or spaniel, one or the other. So obviously it's hard to objectively verify whether his dogs trust him or not, but as far as I know, he was not disciplined for this ad. And as you'll see, and as you might know already, advertising containing cute animals is fairly effective. So maybe he was on to something here. The next billboard I wanna show is from the law firm of Morgan & Morgan. John Morgan helped to establish this firm. That's, I believe, a picture of him in a Santa Claus outfit. I don't think it can be objectively verified that he is Santa Claus so it's that misleading or deceitful? Perhaps not because most people would say that, you know, there is no Santa Claus in the first place. But again, this could fall into the category of bad, cringe worthy advertising. But he is, as far as I know, is not disciplined because of such ads. And in fact, these ads are highly effective. I went on Wikipedia earlier just to see how, what, well, there's this claim that Morgan & Morgan is America's largest injury law firm. I guess that is somewhat verifiable. It has about 3000 employees, about 700 lawyers I believe in all states in the country. It had collected about 1.5 billion in settlements in 2021 and spent about $130 million on advertising to generate what Wikipedia claims was 2 million calls to the firm in 2021. So, these kind of ads do generate interest. John Morgan, looks like he graduated, got his JD in '82 and he was one of the first in the South, in Florida in particular where Morgan & Morgan is currently headquartered, to really push advertising in both print and on television. Now, the last billboard I wanted to focus on is this billboard of Smith & Liggett. This is another billboard using animals. Gorilla, King Kong. You might ask, well, is this misleading? I don't think gorillas would serve me well as in representation in a courtroom, but in any case, it kind of of falls into that category of equating lawyers with mean animals or aggressive, violent animals. And that's somehow going to translate into success in litigation. So, the ABA Model Rule, and I'm gonna focus just on the a ABA Model Rule, as you know, each jurisdiction has its own rules. Most are based almost verbatim on the ABA Model Rules. But there are important differences. So always consults the rules that are applicable to your own jurisdiction before you... And just don't rely on the Model Rules because there might be some key differences. But generally most jurisdictions prohibit lawyers from making false or misleading communications about the lawyer or the lawyer's services. And "a communication is false or misleading if it contains a material misrepresentation of fact or law or omits of fact necessary to make the statement considered as a whole not misleading." In addition to 7.1, Model Rule 8.4, which is the rule to rule all rules, so to speak. That's the misconduct rule that defines what is misconduct that can be disciplined. That rule states that it's professional misconduct for a lawyer to violate or attempt to violate the rules of professional misconduct or professional conduct. So if you violate rule 7.1, that constitutes misconduct. And under 8.4 c, if you engage in conduct involving dishonesty, fraud, deceit or misrepresentation, that constitutes misconduct. So, if you have false or misleading ads, it's kinda a double whammy under 8.4, you can be disciplined for violating both provisions, 8.4 a and c. So let's take a look at some examples of sanctionable advertising. I've taken examples from around the country. 1996 Oklahoma, provides, and these are pretty obvious, but bear with me. If you failed your CPA exam, you shouldn't be advertising that, your CPA, in your advertising. Another case from Ohio, if you're a solo practitioner and you don't have affiliates, you cannot advertise as though you have affiliates to sort of suggest that you're a bigger law firm then you really are. A case from New Hampshire. In Ray Richmond's case, don't advertise an expertise in securities law if you don't really practice that much in that area. And in fact, if you've only drafted a registration statement that had never been filed. In Minnesota, don't say that you have offices near clients throughout the state if you only have one office and you're just thinking of meeting with clients at, you know, hotel conference room or even, you know, Starbucks. That is misleading. Finally, Indiana. This is another example where you're sort of shaving the truth or fudging facts. If you were a deputy prosecutor for a county, you can't just say you're in advertising or in your web bio that you are a prosecutor of a county. So don't shave the truth. Some people might say, well this is puffery, it's not gonna harm anybody. But if you push the truth too much, you could be disciplined by your regulatory system. So take a look at your web bio, make sure that everything is objectively verifiable and make sure you update it as well because if you were on various sports at one point and no longer are, some state bars might look at US scans. Turning back to dogs. So, it's looked like, at least in New Mexico, beagles and spaniels were okay to use in lawyer advertising, but be careful when you use aggressive animals like gorillas or pit bulls. In July of 2021, Florida's Supreme Court did not like the use of pit bulls by a particular lawyer known as the pit bull lawyer who used image of a pit bull on the internet and his business cards and even on his boat. And this pit bull, as you might imagine, has a spike collar, looks very angry and aggressive, the prototypical junkyard dog, so to speak. The Supreme Court of Florida said, "Attorney advertisements which invoke the breed of dog known as the pit bull, demean all lawyers and thereby harm both the legal profession and the public's trust and confidence in our system of justice." Now, I'm not sure if everybody would agree that using dogs demean all lawyers and thereby harm both legal profession and the public's trust. That's an open question. Perhaps if lawyers used Snoopy, Scooby-Doo, would that demean all lawyers? Perhaps not, but at least in Florida, you should not be using a pit bull in your advertising. The last slide regarding this topic of lawyer advertising focuses on what you might see late at night. These are usually personal injury firm ads alerting you to the consequences of taking a certain medicine or using a certain medical device. And there are references to the FDA or medical alerts. A lot of states are trying to restrict lawyer advertising with regard to these kind of ads seeking clients in class actions against corporations that make certain things that might harm you health-wise. The jurisdictions or these states are concerned that such ads are deterring their citizens from taking their prescribed medication or using their medical devices their doctors want them to. So, the concern of the courts and the courts have upheld restrictions on these ads even under First Amendment reasoning because if you use something like a phrase "consumer medical alert, health alert, consumer alert or public service health announcement" in the ad, the consumers might think, might be misled and stop taking something they should to their own detriment and ill health. So those restrictions have been upheld most recently in the Fourth Circuit earlier in 2022 in the case of Recht versus Morrissey. Now let's turn to the next category where there are restrictions placed on lawyer speech despite the First Amendment. Lawyer's rights to freely discuss pending matters with the media can be limited in two ways. In particular, through the adoption of Model Rule 3.6 regarding trial publicity. And most states have adopted this rule almost verbatim. And then with courts issuing what are known as gag orders, which constitute what would be described as prior restraints to speech. So trial publicity, 3.6, that's the way a lawyer regulatory system can discipline you for things you say after the fact. And then gag orders are ways courts can try to modify or moderate your speech before you even try to say something. So Model Rule 3.6 a in particular states as follows: "A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement." So let me just stop there. Extrajudicial, that's a statement outside of the courtroom. Outside of Court filings, outside of arguments you make to the court. So, "extrajudicial statements that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing and adjudicative proceeding in the matter." Now that phrase, as you'll see is really hard to construe. What is... What does that mean, quote, "a substantial likelihood of materially prejudicing an adjudicative proceeding"? Well, we'll see by looking a little bit at ABA comment to the Model Rule 3.6. And this is always, you'll probably find these comments in association with your own jurisdictional rules. This is just for guidance, but it gives you a sense as to what you can and can't say. But you'll see it's still fairly vague and it doesn't give you a lot of like specific guidance. But let's just look at these. Quote, "There are certain subjects that are more likely than not to have a material prejudicial effect on a proceeding, particularly when they refer to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration." So let me stop there. So if it's a jury trial you're commenting on before, especially before the jury isn't paneled, you gotta be very careful. And especially if it's a criminal case that's going to trial. Some of the subjects identified by the ABA include, where you have to be very careful, is one, you have to be careful talking about the character, credibility, reputation or criminal record of a party suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or a witness." You should also be careful with two, quote, "In a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission or statement given by a defendant or suspect or that person's refusal or failure to make a statement." You'll see, I'm not gonna read these in detail, but three, four, five, six, some of these refer to tests, examinations by that your thinking I'm sure of polygraph tests and that's exactly what this goes to. Lie detection. If somebody has failed or not failed a polygraph test, that's something you have to be very careful about, excuse me, discussing in any extrajudicial statements to the press. So the key case with regard to pretrial and trial publicity is the 1991 Supreme Court case Gentile versus State Bar of Nevada. There, Dominic Gentile was a criminal defense lawyer and he was disciplined by the State Bar of Nevada. They were gonna give him a private reprimand for making pre-trial statements to the press regarding his client and his client's innocence. This case involved a safety deposit vault that lawyer Gentile's client owned in Las Vegas. And this safety deposit vault had been used repeatedly by both the Las Vegas Police Department and the FBI in use for undercover operations. So the Las Vegas Police Department was using one of these safety deposit vaults, and over the course of its use, about four kilos of cocaine went missing as well as something like $300,000 of travelers checks. So they ended up charging the owner of the safety deposit vault who was Gentile's client. So that's kind of a factual background. Now, there were, before the criminal indictment, there had been leaks the press as to what was going on with this particular undercover operation. Attorney Gentile knew that there was a criminal indictment coming down the pike. So he did look at the rules regarding trial publicity and he thought he was on the right side of the rules in holding his own press conference after the criminal indictment in order to address some of the charges. During the press conference, and this is attached as an appendix to the decision if you're interested in pulling it up and seeing what he said, but he basically said that the evidence demonstrated or would demonstrate his client's innocence. And he actually was pointing the finger at a particular police detective on the Las Vegas Police Department force by the name of Steve Scholl as the likely culprit for taking the cocaine and stealing the money. There were so-called witnesses or corroborating victims who also had safety deposits boxes in this vault who claim that they had things missing. But Attorney Gentile said most of 'em were drug dealers or convicted money launderers who had never complained about missing money before or missing items, but only came up forward after being pressured by the police to, in support of this criminal indictment against Gentile's client. So they were trying to work out something for themselves as Attorney Gentile claimed. Attorney Gentile also said regarding this Steve Scholl, that he "could be observed in a videotaped suffering from symptoms of cocaine use." The Supreme Court when it was looking at this case, sort of, well to its credit ,drilled down on exactly, well, what was said and how was it disseminated and potentially how did these statements undermine the impartiality of a jury? So as the Supreme Court noted, only a small fraction of petitioners of Gentile's remarks were disseminated to the public in only two newspaper stories, and in two television news broadcasts. During the arguments, the Nevada State Bar argued that speech by an attorney, and this is sort of by the book, you know, according to 3.6, that they argue that speech by an attorney is subject to greater regulation than speech by others. And restrictions on an attorney's speech should be assessed under a balancing test that weighs the state's interest in the regulation of a specialized profession against the lawyer's First Amendment interest in the kind of speech that was at issue. So, that's true that a balancing test should be used. Meanwhile, Attorney Gentile said, argued that in order to suppress press commentary on evidentiary matters such as the press conference he held, he argued the state would have to show that, quote, "further publicity, unchecked, would so distort the views of potential jurors that 12 could not be found who would, under proper instructions, fulfill their sworn duty to render a just verdict exclusively on the evidence presented in open court." The Supreme Court did talk about the "substantial likelihood" test, said it was constitutional, but then looking at... Let me go back a slide. But then looking at the facts of the case, the Court said that Attorney Gentile's press conference really didn't violate the rule being invoked by the regulatory system of Nevada because it was, the press conference was held right after the indictment, so it was about six months before the jury trial. The Supreme Court also said that because there had been leaks to the press, basically defaming, denigrating the reputation of Attorney Gentile's client, that Attorney Gentile almost had a duty to come forward and defend his client in the press. His client suffered, you know, a great detriment to his business interest. People stopped using that vault containing all these safety deposit boxes because all of this was in the press. And the Supreme Court said that this is the kind of speech that should be protected because the comments made by Attorney Gentile went to corruption in the legal process, specifically corrupt or crooked cops in the Las Vegas Police Department. And as it turned out, Attorney Gentile was somewhat vindicated. At the end of the trial, the foreman of the jury said that if Police Detective Steve Scholl was on trial, that the jury would've convicted him for stealing the money and the cocaine. So all that said, Attorney Gentile was vindicated by the US Supreme Court, and the balancing test was bound to tip in his favor. So the other type of restraint on lawyer speech in terms of trial publicity are the so-called gag orders. And those orders prohibit lawyers in a pending case from publicly speaking about it beforehand. The Supreme Court, unlike in Gentile in 3.6, hasn't really addressed specifically the constitutionality of gag orders, but has provided some clues in Dicta as it did in a 1976 case, National Press Association versus Stuart. In that case, the US Supreme Court considered the constitutionality of an order entered in a murder case barring the press from reporting any confessions made by the defendants to law enforcement or third parties, and barred the press from reporting any other fact which strongly implicated the defendants. The Court held that the heavy burden imposed as a condition to securing a prior restraint was not met. And that conclusion was based, in part, on the Court's finding that other measures short of prior restraint may have been equally effective in preventing prejudicial pretrial publicity, such as limits on what the lawyers, witnesses, and police could say to anyone. So that, in a little more detail, basically the Court was saying, well, you shouldn't put a gag order on reporters when you could put a gag order on the lawyers from speaking to the reporters. So there are alternatives to placing gag orders directly on reporters. However, since that case, there's been something of a split among the circuits regarding the constitutionality of gag orders. Fourth Circuit approves gag orders if there is a reasonable likelihood that due to the prejudicial news coverage the defendants would be denied a fair trial. So that's kind of vague. It would really have to come down to the specifics of the case at issue. Tenth Circuit also is, generally, approved gag orders if there is a reasonable likelihood of prejudicial news that would make difficult the impaneling of an impartial jury and tend to prevent a fair trial. So again, we have that phrase, reasonable likelihood of prejudicial news. What does that mean exactly? Like Gentile, a Court would really have to drill down to see if a gag order is constitutional or not. The Sixth Circuit and the Second Circuit have been a little bit more reluctant, giving a broad permissive use of gag orders. The Sixth Circuit has held that to justify imposition of a prior restraint, statements must pose a clear and present danger or a serious or imminent threat to a protected competing interest, and must be narrowly drawn, and cannot be upheld if reasonable alternatives would have a lesser impact on First Amendment freedoms. So I kind of like this because like the Gentile case, there was no clear and present danger. Gentile had held the press conference six months before the trial and then paneling of a jury. So there was no so-called clear and present danger. And there should be alternatives, reasonable alternatives. So there shouldn't be broad gag orders. The Second Circuit is similar to the Sixth Circuit and sort of narrowing what would be constitutional in terms of a gag order. But see there, I bring forward the Second Circuit case because you gotta be careful because the penalties for violating a gag order can be pretty severe and could be upheld depending on what jurisdiction you're in. In the this case, the U.S. v. Cutler case, the lawyer Bruce Cutler was representing well-known, infamous mob boss John Gotti, and he, sort of like Gentile, was responding to bad press coverage of his client. The prosecutor in that case actually had held his own press conference was trying to say John Gotti is not like Jesse James, he shouldn't be a folk hero, he's a murderer and he should be prosecuted. Bruce Cutler in response said the prosecution was publicity hungry and had a vendetta against John Gotti, but he also denied that Gotti was a mob boss. But all of this was in direct violation of a gag order that the Court had issued. And beyond this, I guess Cutler had been really pushing the Court and perhaps arguably violating this gag order on other occasions as well. So that resulted in a fairly severe punishment by the trial court. He was sentenced to three years probation. Well, he was convicted of criminal contempt for violating the trial court's gag ordered, sentenced to three years probation, 90 days house arrest, six months suspension from the Eastern District of New York and had to serve 600 hours of non-legal community service. Now I thought that last punishment was pretty punitive, 600 hours of non-legal community service. If I was judge, I would say, well, at least you use your skills and represent pro bono attorneys or some sort of legal assistance center. But he had to do non-legal community service, which concerts up images of him picking up garbage along the side of the expressway. Moving on to our next category of political or speech, lawyer speech that can be regulated, a political expression in court. So we had been talking about political expression or lawyer speech outside of the courtroom in terms of trial publicity, speaking with reporters and that sort of thing. I wanna talk about in the courtroom. In Gentile, in Dicta, the Supreme Court did state that, quote, "in the courtroom itself, during a judicial proceeding, whatever right to 'free speech' an attorney has is extremely circumscribed." And I left it at that since I wasn't really dealing with speech inside the courtroom. But since Gentile. now it's 1991, the question remains, well, how extremely circumscribed is an attorney's free speech rights? That question has, or that the answer to that question hasn't been taken up by the Supreme Court since Gentile. I'm just gonna grab a little sip of water here. Although the answer to that question hasn't been taken up by the Supreme Court since Gentile, a handful of federal circuits since Gentile have upheld most restrictions on political expression in the courtroom. Two of the cases, well, I'm gonna discuss two cases. The first case is from the First Circuit, 1997 Berner v. Delehanty. And there, there's a main lawyer, his name was Seth Berner. In 1995, there was an initiative on the main ballot during election season that had what we would call sort of an anti-LGBTQ+ initiative. And he wore a two inch button on his lapel. So a fairly big button, two inches, not just a small lapel pin. And that button said, quote, "No on 1, Maine won't discriminate." So when he showed up in court, the trial judge told him to remove it because quote, "the courtroom is not a political forum." End quote. And just so you know, the case in which he was appearing had nothing to do with this ballot initiative. The First Circuit agreed with the trial court after the main lawyer challenged that order to remove his button. The First Circuit agreed that the button violated certain legal norms, specifically, quote, "Emblems of political significance worn by attorneys in the courtroom as a means of espousing personal political options can reasonably be thought to compromise the environment of impartiality and fairness to which every jurist aspires." And the Court went on further to say, quote, "As an officer of the court, a lawyer's injection of private political viewpoints into the courtroom, coupled with the judge's toleration of such conduct, necessarily tarnishes veneer of political imperviousness that ideally should cloak a courtroom, especially when the partisan sentiments are completely unrelated to the court's business." I should also mention here that in this case and others, the federal circuits have also noted that if the political statement that you're trying to make as a lawyer in the court has nothing to do with your client's case, you should consider whether you're actually violating your duties to your client because you're kind of putting your own political interests above those of your client if you're trying to distract or make a a separate statement, it's unrelated to your client's interest in the courtroom, thereby perhaps distracting the jury or the judge, the witnesses in what's really the matter at hand. Now there have been other so-called button cases or pin lapel cases, most notably lawyers who have been wearing Black Lives Matter buttons and trial Court judges have ordered those kind of buttons removed. Well, let me just grab a another sip of water here. But in those cases where the lawyers were asked to remove the buttons, those challenges, they haven't fully challenged those orders or they haven't been fully appealed, but the the moral of the story is that generally within the courtroom, the trial judge is likely going to be confirmed by higher courts if he or she orders you to remove a political pin that you're wearing that the court thinks is unrelated to the matter at hand and is undermining the impartiality, the so-called veneer of impartiality in his or her courtroom. The other case I wanna focus on is on the other side of the country. In the Ninth Circuit, 1992, involved a lawyer who's by the name of Cyrus Zeal. He was a very outspoken anti-abortion lawyer. And during one trial where he was defending a pro-life protestor for that protester's activities, the trial court judge had cautioned him early on before the trial with regard to motions in limine, that he shouldn't use a lot of inflammatory terms during the trial including, and there was a list of 50 or so words and phrases including a sampling. Here, I've given you just the sampling, "abortion", deathscort", "killing centers", "Hitler", "death mill", "infanticide", "gorilla". I'm not sure why gorillas in there, but "bloodbath", "carnage", "child slaughter", et cetera, you get the idea. So Zal totally disregarded this banned word list and repeatedly used a lot of these terms throughout the trial. He was cited for contempt 20 times by the judge and he appealed these contempt rulings. But the Ninth Circuit sided with the trial court judge saying that the First Amendment did not apply in courtrooms because the courtrooms are not so-called public fora. And the Ninth Circuit sort of reason using a lot of rhetorical questions as follows. Quote, "Does a juror have a First Amendment right to speak or to examine witnesses? Does a court reporter have a right to editorialize during closing arguments? May spectators chafe, chant, and cheer? Could an anti-abortion advocate appear and deliver a right-to-life speech to the jury about to deliberate on the charges against Zal's clients? I would think not." So you get the idea of generally political speech in the courtroom by the lawyer, that has nothing to do with the case at hand is generally going to be restricted. And in other words, you don't have a First Amendment right to say or express those views. You can't turn a courtroom into a so-called zoo, so to speak. Now I want to turn to criticizing judges and legal officials. ABA Model Rule 8.2 regards such criticisms, 8.2 a in particular states as follows, "A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, ajudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office." Now you'll see it seems like the criticism, you can make a a statement critical of a judge if it's untrue. But the question, keep in mind while I go through these next slides is, well, what if it's true? Can you still be disciplined? The ABA comment to rule 8.2 is somewhat enlightening. It justifies the rule in so far that assessments by lawyers are relied on in evaluating the professional and professional fitness of persons being considered for election or appointment to judicial office and to public legal offices. Basically the ABA is saying, well, lawyers are trusted professionals, people rely on them. So there's sort of a higher standard on by which they should operate in addressing the fitness of certain people for the bench. As the ABA comment continues, expressing honest and candid opinions on such matters contributes to improving the administration of justice. But conversely, false statements by a lawyer can unfairly undermine public confidence in the administration of justice. Now, the Supreme Court generally has upheld restrictions on lawyer speech criticizing judges and legal officials. I cite one case in re Schneider from 1985 where the US Supreme Court writes, quote, "The license granted by the court requires members of the bar to conduct themselves in a manner compatible with the role of courts and then administration of justice." End quote. In other words, lawyers should not try to undermine the public's trust in the legal system. But then, you know, think back to Gentile, where Gentile was criticizing the legal system because his client was being on the short end of corrupt cops. But in any case, I've cited some cases where lawyers have been disciplined for criticizing judges or other legal officials. I cited a case here from Wisconsin where a lawyer referred to various judges as "black-robed bigot", a "dirty Jesuit", "a dastardly Jesuit", "a Jesuit working undercover" and a "Catholic Knight Witch Hunter". This lawyer also stated that court systems "are composed of a bunch of ignoramus, bigoted Catholic beasts that carry the sword of the church." So don't say those things without thinking that you're not gonna be disciplined. In Iowa, a lawyer was disciplined for sending a letter to Attorney General accusing a county attorney's office of misconduct. So it's just not judges that are are concerned, that lawyer regulatory systems are concerned with. It's county Lawyers, Corporation Counsel, DAs. Here in Louisiana, this case from Louisiana, though a lawyer filed affidavit falsely accusing a district attorney, who filed felony felony charges against the lawyer of conspiracy to commit murder. You don't say such things unless it's objectively verifiable. Otherwise, you're gonna be faulted for recklessly disregarding the falsity or truth of a matter. Oklahoma, a case from West Virginia. Administrative law judges, judicial candidates, especially during election season just be careful of criticizing judges unless you're basing your criticism on fact. There are those that think that lawyers should have a little bit more free reign in criticizing judges and legal officials. Erwin Chemerinsky, the well-known constitutional scholar, thinks that requiring lawyers to relinquish First Amendment rights as a condition of membership in a bar should be seen as unconstitutional, as an unconstitutional condition. And there are other scholars who agree with that view, especially when you're dealing with corruption within the legal system or those that are corrupt within it, such as judges or other legal officials. Now the the last category I wanna talk about is just truthfulness in general. Most of the time, false speech or things that you say that are untrue or are misleading or lies are not protected under the First Amendment. But with lawyers, as you know, lawyers are experts in rhetoric generally, they are considered to have so-called silver tongues. And the truth is, is if you're can be, let's say, shaped so much if there's no such thing as a big truth with a capital T. So even the Model Rules contemplate that lawyers need to be less than candid at times in arguing, advocating for their client. ABA Model Rule 8.4 c, I referred to this earlier, does state it's misconduct to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. But there are certain instances where you could maybe push it a little bit. Certain jurisdictions like Colorado have added exceptions like, quote, "except that a lawyer may advise, direct, or supervise others, including clients, law enforcement officers, or investigators, who participated in lawful investigative activities." So in order to get evidence, perhaps you don't need to be as upfront with third parties as you might otherwise think. Other examples exist too. I cite a comment to rule 1.7, conflicts of interest. So these are like positional conflicts where in one case you can argue one position and another case, in a different tribunal, a different court you could argue the exact opposite position, that is acceptable because, well, philosophically you're advocating for your client and you can be somewhat Janus face, two faced and still be ethical under the rules. So three rules in particular limit misrepresentations. I already talked about 8.4. The other two rules just to keep in mind in determining how far you can go in shaving the truth. 4.1 Truthfulness in Statements to Others. 3.3 Candor Toward the Tribunal. Obviously your credibility is paramount when you're in front of a judge. So generally be as upfront as possible, cite adverse case law, et cetera, as you should. But recently the, I wanted to talk, we're running out of time here, but I wanna talk about the latest focus on regulatory systems on lawyers who are facing ethics complaints regarding challenges to the 2020 election. And those complaints filed by attorneys like Rudy Giuliani on behalf of Donald Trump saying that the election was stolen or there was voter fraud. Some might say, well, they're just advocating a position that has some basis in truth, perhaps not as wide a basis as some might think, but should they be disciplined or suspended or sanctioned in some way for filing these complaints? I cite one case here where membership in the bar entails an ethical obligation to temper one's self-interest by adhering to standards of conduct. So it's not just self-interest, but your interest of your clients that you're worried about. But let's say you're advocating on behalf of former President Trump like Rudolph Giuliani did, should he be disciplined? And I say that because Rudy Giuliani is now facing all these ethics complaints and is in disciplinary hearings perhaps as we speak in various jurisdictions for the positions he's adopted in these filings challenging the election. And here I cite the proceeding from the New York disciplinary proceeding in 2021, which did lead to his at least interim suspension of his license in New York. Here, keep in mind, Gentile. It is long recognized that Supreme Court states that "speech by an attorney is subject to greater regulation than speech by others." "Unlike lay persons", and this is a case from Ohralik, "an attorney is a professional trained in the art of persuasion." So basically lawyers can be dangerous if not regulated. And that's the kind of argument that's been levied against Rudolph Giuliani. In other words, lawyers are perceived by the public to be in a position of knowledge and therefore a crucial source of information and opinion. And if you're abusing that position, then perhaps regulatory systems are gonna look at you. In the Giuliani case, the disciplinary board said that was citing cases like this one matter of nearing that the weighty responsibility is reflected in the, quote, "ultimate purpose of disciplinary proceedings which is to protect the public in its reliance upon the integrity and responsibility of the legal profession." So while there are limits on the extent to which a lawyer's right of free speech may be circumscribed, these limits are not implicated by these circumstances, at least argued by those prosecuting Giuliani who should have known better that perhaps his arguments were not based on fact. If you've been following the proceedings, Mr. Giuliani has been saying, well, at the time he made those arguments, he thought there was evidence or the documents he relied on have gone missing, but things haven't been going so well for Mr. Giuliani. The last subject I wanna talk about, and this is become something of a hot button issue, 8.4 g, the ABA issued this rule, Model Rule 8.4 g in 2016. It's something like a anti-harassment, anti-discrimination rule. You might hear it described as such, but it defines professional misconduct as "engaging in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, et cetera." This can be considered fairly broad as the official comments show. I'm not gonna read the comments in verbatim here, but I recommend you do read them because attorneys have been sanctioned for violating to the rule to the extent the jurisdiction in which they practice has adopted that rule, 8.4 g. There's a case in Colorado from last year where attorney was sanctioned for using an anti-gay slur to refer to a judge in an email to a client. There have been challenges to this rule, particularly in the Third Circuit that the language is too broad, unconstitutionally broad, and it curtails and chills a lawyers First Amendment free speech rights. Those cases are still winning their way up through the federal circuits. At some point, I might, we might see it in front of the US Supreme Court, but until then, just be aware that if you do discuss certain hot button culturally controversial topics such as cases even before the Supreme Court, like I'm thinking of the, one of the recent cases heard by the Supreme Court, where a baker didn't want to bake wedding cakes for ceremonies involving LFBTQ+ participants for religious reasons. By discussing a case like that, even in a CLE, like I am doing today, is there a possibility I could be disciplined if I say the wrong thing about that case, or advocate for a certain side of that case? Does that, is that a curtailment of my First Amendment rights? Does it chill my First Amendment right to free speech? Those are questions that are still out there and we'll be asking 'em for the years going forward. The ABA did issue a formal opinion in 2020, sort of addressing those First Amendment concerns. It did cite some hypotheticals. And as you'll see, these hypotheticals can cause some concern just thinking about 'em. And I'll just cite this last one in the last bullet where the ABA says, "A lawyer may belong to a religious legal organization which advocates for the ability of private employers to terminate employees based on their sexual orientation." So that does seem permissible, that's what the ABA says, but maybe a lawyer regulatory system that's adopted 8.4 g might look at similar circumstances and find that a lawyer has engaged in discrimination or harassment. So keep that in mind. But a lot of interesting questions as to what free speech lawyers do have once they're admitted to the bar. I hope you enjoyed today's presentation on the tension between legal ethics and the First Amendment protections provided to lawyer speech. I hope you have a great day and a great year. Thank you.

Presenter(s)

JR
Joseph Russell
Shareholder
von Briesen & Roper s.c.

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    Alaska
    • 1.0 ethics
    December 9, 2024 at 11:59PM HST Available
    Arizona
    • 1.0 professional responsibility
    December 9, 2024 at 11:59PM HST Available
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    • 1.0 ethics
    Pending
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    • 1.0 ethics
    December 9, 2024 at 11:59PM HST Approved
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    • 1.0 ethics
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    • 1.0 ethics
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      • 1.5 ethics
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      • 1.0 ethics
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      • 1.0 ethics
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        December 14, 2024 at 11:59PM HST Approved
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                              • 1.0 ethics
                              December 31, 2026 at 11:59PM HST Approved
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                              • 1.0 ethics
                              December 9, 2024 at 11:59PM HST Available
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                              • 1.4 ethics
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                                • 1.0 ethics
                                December 9, 2024 at 11:59PM HST Available
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                                December 9, 2024 at 11:59PM HST Available
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                                  December 9, 2025 at 11:59PM HST Approved
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                                          • 1.15 ethics
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                                            • 1.0 ethics
                                            December 9, 2024 at 11:59PM HST Approved
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                                              • 1.0 ethics
                                              December 9, 2024 at 11:59PM HST Approved
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                                              • 1.0 ethics
                                              December 9, 2027 at 11:59PM HST Approved
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