Prof. Alan Dershowitz on Indiana Attorney Free Speech

At the bottom of this article is a piece penned by Professor Alan Dershowitz on attorney free speech, with a focus on Indiana. The article was written in 2003 after the Indiana Supreme Court had decided the Wilkins case in which an attorney was disciplined for including a footnote in his petition to transfer brief which essentially asserted that the Court of Appeals decision on the case was result oriented.  The decision was on its way to the United States Supreme Court and Prof. Dershowitz was afraid it would be upheld by the United States Supreme Court, thus allowing the 50 states to follow Indiana's lead in using the disciplinary rules to enforce speech codes for lawyers.

Professor Alan Dershowitz

In retrospect, Dershowitz's concern about the United States Supreme Court seems misplaced. In the decade that followed Dershowitz's article, the one area where there seems to be near unanimity among conservative and liberal justices is that limits on free speech will not be tolerated. Given the increased proclivity of justices on the Court to criticize each other publicly, it is extremely unlikely that the Court would uphold state disciplinary decisions that discipline attorneys for criticizing judges, especially since those judges must sit for election or retention by the voters.  All previous U.S. Supreme Court cases have advanced attorney free speech against attempted state restrictions, the most recent one being the Gentile v. State Board of Nevada case in 1991.

The key though is to get the United States Supreme Court to hear the case.  In a situation in which a petition for the Supremes to hear the case is successful in only about 150 of the 10,000 appeals that are filed (about 1.5%), getting Supreme Court to review an attorney disciplinary case is challenging  Given the lack of U.S. Supreme Court review for the past 22 years, states have begun to increasingly push the envelope on sanctioning attorneys for speech, often criticism of judges, which would be protected if uttered by a non-attorney.  As the Court said in Gentile, attorneys are just like regular people and have free speech like everyone else.  The only time that speech can be limited is when attorneys are speaking out publicly about a pending case to try to influence a finder of fact.  It is a mandate ignored by state disciplinary bodies all over the country.

Indiana, unfortunately, appears to lead the country in sanctioning attorney free speech.  In 2003, there was the aforementioned Wilkins case.  Before that, in 1994, an attorney was public reprimanded for making the off-hand comment, apparently overheard by court staff, that a Marion County Small Claims court was a "Mickey Mouse court" because the court allowed a landlord's attorney whose cases dominated the court's docket to essentially run the court.

In another 1994 disciplinary case, an attorney who had been arrested for contempt for failing to attend a criminal court hearing, and paraded before his client in a jail uniform while the judge demanded an apology, was found to violate the disciplinary rules when he later criticized the judge's actions to a court reporter.   While the attorney' criticism of the judge was understandably very harsh, contrary to some state court decisions, free speech does include the right of attorneys to criticize the decisions of judges, even to question the possible motivation for those decisions.  Again, the United States Supreme Court has said attorneys are just like ordinary people when it comes to free speech. Since the attorney was not interfering with the administration of a pending case, he is entitled to criticize the judge.

Moving forward to this year, an attorney in Indiana was recently suspended for 30 days for writing a letter (which was placed in the court file) that a mother who was not allegedly providing his client court-ordered visitation was in the country illegally.  Although the attorney had never been suspended in 46 years, the Court felt the failure to apologize to the mother was a reason for the suspension.  (Apologies, or lack thereof, for some reason seem reason seem to play a very large role in the decision to discipline an attorney.)  Recently I wrote about the case of two attorneys who are being prosecuted by the Disciplinary Commission because they asked a judge to recuse herself because her rulings represented possible bias. One of those cases is pending before the Indiana Supreme Court.

Executive Secretary Michael Witte

Then we have the case involving yours truly in which the Disciplinary Commission is seeking to establish a new beachhead in attorney discipline - sanctioning an attorney for private criticism of a judge, criticism that was never intended to be made public and, in fact, was only made public by the Commission's actions in filing the charges.  Thanks to a recent email I am now aware of what appears to be the only one other attempt by a disciplinary body to try to sanction an attorney for private criticism of a judge under Rule 8.2, a pending case in Tennessee in which the attorney wrote a judge criticizing him for published (and the attorney believes inaccurate) comments about a case he had been involved in.  If those facts turn out to be true, then I have actually found an even more outrageous Rule 8.2 disciplinary prosecution than my own.

(As a side note I would add that, in reviewing the incredible number of exhibits and 11 1/2 hour transcript on my case in writing a brief, I am struck by the outrageous amount of resources the Disciplinary Commission has been willing to put into my prosecution for writing an email criticizing a judge.  That effort discredits Executive Director Witte when he claims a lack of resources for the Disciplinary Commission being unable to do its job in protecting the public from attorneys like Willliam Conour who pled guilty to pilfering millions from his trust account.  The Disciplinary Commission, despite having complaints from clients about Conour for years, failed to take action.  It was only after the FBI had wrapped up the case and Conour had agreed to plead guilty, that the Commission finally took action.  By then Conour's clients had been harmed by the loss of millions of dollars, a direct result of the failure of the Commission to take action.  Likewise attorneys in Indiana who have been convicted of felonies to this day remain uncharged by the Commission.  If Executive Director Witte and the attorneys and lay people who sit on the Disciplinary Commission are unwilling to do their jobs and are going to waste the limited resources of the Commission going after attorneys for free speech, they need to vacate their positions so that those of who care about cleaning up the ethics of the legal profession can have those positions.)

Advancing technology is providing additional opportunities for attorneys to offer their opinions.  In light of that, and state disciplinary bodies increasing their attempts to impose speech codes for attorneys, Prof. Dershowitz's 2003 article on the subject of attorney free speech is worth re-reading in its entirety:

A Speech Code for Lawyers?
The Supreme Court may have to decide.

At a time when the law school community is deeply divided about the desirability of speech codes—Harvard Law School has one under consideration now—a little-noticed decision by the Indiana Supreme Court has imposed a draconian speech code on the lawyers of that state.

Pending the result of a lower-court rehearing, the Indiana case could be headed to the United States Supreme Court, where it—if it is affirmed—could dramatically affect the right of every lawyer in the country to criticize the judiciary. Thus, the attention of all lawyers should be focused on this potentially dangerous precedent.

In the Indiana case, a lawyer was suspended from practice for criticizing the opinion of the lower appellate court for being result-oriented. The criticism took the form of the following footnote in the appellate brief: "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 . . . and then said whatever was necessary to reach that conclusion (regardless of whether the facts or the law supported its decision)."

The decision of the Supreme Court to suspend the lawyer was based on a 3–2 vote, with the deciding vote having been cast by one of the justices who was himself criticized in the footnote. That justice had been promoted from the Court of Appeals to the Indiana Supreme Court and did not recuse himself from the disciplinary case even though he was one of the victims of the "offending" footnote.(The justice has since recused himself from the rehearing petition, but that does not withdraw his vote from the disciplinary action.)

Two justices of the Indiana Supreme Court dissented from the disciplinary decision, arguing that the footnote in question contained "rhetorical hyperbole" that was protected by the First Amendment. One of the dissenting justices pointed out that judges commonly attack their colleagues on the bench with similar hyperbole, citing particularly opinions by Justice Antonin Scalia, who is well known for his personal attacks on the integrity and rationality of his fellow justices. The majority decided to impose the relatively harsh sanction of suspension because the lawyer in question "chose to contest this matter," presumably instead of simply rolling over and admitting he was wrong.

Firsthand experience

It is not surprising to me that this Stalinist decision—punishing a lawyer for expressing a critical opinion and then justifying the punishment because he didn't seem duly remorseful—was rendered by the Supreme Court of Indiana. I have argued cases all over the world, and I have never encountered a legal system as result-oriented as that of Indiana or a chief justice as self-protective as Chief Justice Randall Shepard (who joined the majority in disciplining the lawyer). When I agreed to argue the rape-conviction appeal in Indiana for former heavyweight champion Mike Tyson several years ago, I was warned by several members of the bar about the Indiana court system. Then I experienced it firsthand.

While attending a multiclass Yale Law School reunion, a woman approached me and told me that New York lawyers' arguments don't go over well in Indiana. I asked her who she was, and she told me she was the wife of the chief justice, who had graduated from Yale several years after I had. I immediately ended the conversation and walked away telling her that any further discussion would be inappropriate. (This encounter was attested to by an affidavit from a witness.) Shortly thereafter, Justice Shepard recused himself (he gave no reason at the time), and the eventual decision in the case was a 2–2 tie, which resulted in Tyson's conviction being affirmed. In an opinion offered roughly a year later regarding his recusal, Justice Shepard stated that he opted to recuse himself before the Court of Appeals ruled on Tyson's appeal in order to demonstrate that his "recusal was not outcome-driven."

Our research disclosed that Justice Shepard had written several opinions that, if followed, would probably have led him to rule in our favor. But in the opinion of several Indiana lawyers familiar with Judge Shepard's rulings who were consulted at the time, he might not have wanted to cast the deciding vote in favor of an accused rapist because of controversial accusations made about him by a fellow judge who was running against him several years earlier. According to the National Law Journal, "Fellow Justice Alfred J. Pivarnik . . . accused [Shepard] of having abused alcohol, smoked marijuana, and made sexual advances toward men."

Justice Shepard denied the accusations, and although he won the election and no formal charges were brought against him, it was the opinion of the Indiana lawyers our team consulted that Shepard may have been concerned about these issues resurfacing if his vote was decisive in the Tyson appeal. There is no evidence that Justice Shepard deliberately sent his wife over to me to provoke a recusal. I do not know. But I do know that Shepard's recusal protected him from a potentially damaging public controversy.

Flaws of the system
It is always systems most deserving of criticism that impose limitations on the freedom to criticize. There is an old joke about a dissident who called Stalin corrupt. He was accused not of slander but of revealing a state secret. That is essentially what the Indiana lawyer has been convicted of—namely

Were I a member of the Indiana bar, I could not offer my opinion about Justice Shepard without fear of judicial reprisal. Fortunately, I am a member of the bar of Massachusetts, where the First Amendment still means something. Because I am not subject to the censorship of the Indiana courts, I feel a special obligation to speak about what I experienced when I argued a case in that jurisdiction—despite what some may characterize as sour grapes. But the question remains: Will freedom of speech for lawyers, inside and outside Indiana, remain vibrant after the current Supreme Court majority—which was shell-shocked by the vituperativeness of the criticism directed at it following Bush v. Gore—has its crack at this important issue?