Sharp criticism of court in a brief leads to disbarment

[Volokh, Eugene]

    Randy's point is a very interesting one, and may help dispose of the
matter.  Indeed, the distinction between what one says in briefs (or in open
court) and what one says in other contexts likely does the job here.  I
still think the 30-day suspension is excessive, but on reflection, and given
Randy's point, I realize that it probably isn't constitutionally
problematic.

    Eugene

-----Original Message-----
From: Randall Bezanson [mailto:randy-bezanson at UIOWA.EDU]
Sent: Friday, November 01, 2002 7:22 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Sharp criticism of court in a brief leads to disbarment



        I take it that part of any justification for the court's order
imposing sanctions is that a lawyer is not speaking for herself or himself,
but rather for her or his client, and therefore does not possess the same
measure of free speech that we academics might enjoy when criticizing a
court's decision.  That, of course, is what has happened in Rust v. Sullivan
and Velazquez, to name but two cases.  I presume that it was the essence of
the government's argument in Conant v. Walters (CA9), the recent medical
marijuana case (which, notably, failed).

Randy Bezanson



At 08:43 PM 10/31/2002, you wrote:



        Jeff Cooper (
<http://cooped-up.blogspot.com/2002_10_27_cooped-up_archive.html#85625416>
http://cooped-up.blogspot.com/2002_10_27_cooped-up_archive.html#85625416)
points to what strikes me as a potentially troubling decision:


        In 1998, Michael Wilkins, a respected attorney at a high-powered
Indianapolis law firm, served as local counsel for a Michigan insurance
company involved in litigation in Indiana. In that capacity, he signed a
brief written by his client's principal counsel, seeking Indiana Supreme
Court review of a decision by the Indiana Court of Appeals. A portion of the
brief stated:  "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." A footnote to the above passage read as follows:  "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)."
Because Wilkins signed a brief containing an intemperate criticism of the
Indiana Court of Appeals panel, the Indiana Supreme Court, by 3-2 vote, has
now suspended him from the practice of law for thirty days. Justice Theodore
R. Boehm wrote a strong dissent, in which he compared the brief's language
to Justice Scalia's withering criticism of his colleagues in his dissent to
last June's Atkins v. Virginia decision.

The Indiana Supreme Court opinion discusses the lawyer's free speech claim,
but I don't think it really gives it its due.  True, the punished speech was
in a brief, where necessarily the judicial system has more authority than it
would over out-of-court statements; still, while I can see this leading to
sanctions in the case in which the brief is filed, the 30-day suspension
strikes me as a serious enough penalty that I wonder whether it goes beyond
the extra latitude that the court has to punish lawyer speech.  Any
thoughts?

        Eugene

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