Sharp criticism of court in a brief leads to disbarment

[Allan Ides]

I'm not sure why that does the job.  If the lawyer is speaking for the
client then we've merely transferred the 1st amendment issue to the
rights of the client.  Is the client not allowed to sharply criticize
the court?

Allan Ides

----- Original Message -----
From: "Volokh, Eugene" <VOLOKH at MAIL.LAW.UCLA.EDU>
Date: Friday, November 1, 2002 8:57 am
Subject: Re: Sharp criticism of court in a brief leads to disbarment

>    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
> medicalmarijuana case (which, notably, failed).
>
> Randy Bezanson
>
>
>
> At 08:43 PM 10/31/2002, you wrote:
>
>
>
>        Jeff Cooper (
> <" target="l">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-
> poweredIndianapolis 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
> SupremeCourt 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
> discussrelevant cases that are directly on point. Clearly, such a
> decision should
> be reviewed by this Court. Not only does it work an injustice on
> appellantMichigan Mutual Insurance Company, it establishes
> dangerous precedent in
> several areas of the law. This will undoubtedly create additional
> problemsin 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
> AppelleeSports, 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
> languageto 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
> suspensionstrikes 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
>
>