Sharp criticism of court in a brief leads to disbarment

[Bryan Wildenthal]

I suspect plenty of us law profs have sometimes offered equally or even
harsher criticisms of court opinions in law review articles.  I slammed the
Eleventh Circuit pretty badly in a 1998 article criticizing its decision in
the Shahar v Bowers case (concerning termination of an openly lesbian
attorney for engaging in a private off-the-job religious marriage ceremony
with her partner).  I recently battered the Rehnquist Court pretty badly in
a forthcoming symposium article at Tulsa Law Review on several of that
Court's grotesquely misreasoned, and arguably racist, opinions in American
Indian Law cases.  I sincerely believe that Chief Justice Rehnquist has been
deliberately dishonest (in an intellectual sense) in a number of arguments
he has made in a number of cases over the years.  If I expressed similar
sentiments about the Michigan Supreme Court, could it constitutionally
penalize me regarding my still-active (though unused in more than a decade)
Michigan bar membership?

I can't think of any plausible argument for why this court decision is not
plainly wrong.  I can't even see it is a very close case.  Unlike Eugene, I
don't even see how it could properly lead to sanctions in the case in which
it was filed, much less an across-the-board sanction affecting the
attorney's entire practice.  Questioning a court's good faith may not be
good professional legal practice, or wise, but lawyers more than anyone need
the breathing room of a vigorous First Amendment, *especially* in making
legal arguments.  When such speech overreaches, it is usually its own worst
penalty.

This decision trashes the First Amendment in my opinion.  This is judicial
arrogance at its worst.  Woops, good thing I'm not a member of the Indiana
Bar.

Bryan Wildenthal,
Thomas Jefferson School of Law


-----Original Message-----
From: Volokh, Eugene [mailto:VOLOKH at MAIL.LAW.UCLA.EDU]
Sent: Thursday, October 31, 2002 6:43 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Sharp criticism of court in a brief leads to disbarment



        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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