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First Amendment protects lawyers against vague and overbroad gagging rules

Sep 07, 2007 First Amendment protects lawyers against vague and overbroad gagging rules

Bill of Rights. (From the public domain.)

Praised be federal trial judge Arthur J. Tarnow for striking down Michigan’s ethical rules that limit lawyer criticism of judges and discourteous or disrespectful language to others. Judge Tarnow reached his decision by determining that the ethical provisions are unconstitutionally vague and overbroad, in violation of the First Amendment. Fieger, et al. v. Michigan Supreme Court, et al., __ F.Supp. 2d _ (E.D. Mich. Sept. 4, 2007). [On a point of trivia, plaintiff Fieger is Jack Kervorkian’s lawyer; this article talks about his out-of-court scathing words about judges that came back to bite him under the ethics rules.]

One of the two ethical rules successfully challenged in this First Amendment litigation bars "undignified or discourteous conduct toward the tribunal." The second provision requires treating other persons with "courtesy" and "respect".

Often lawyers will be among the first to know about judicial misconduct, incompetence, and negligence. The light of day must be shined on such actions, which will not happen if lawyers are muzzled. Sometimes, other lawyers and non-lawyers will get so nasty with a lawyer that the lawyer has little choice but to use figurative bows and arrows against the opponent in order to neutralize the barrage. Leaving the courtesy and respect rules in place and in force will help emasculate lawyers from fulfilling their obligation to zealously and competently represent their clients. Treating everyone with dignity is preferable, but litigation sometimes can get unavoidably and downright ugly.

I look forward to this Fieger result being contagious throughout the nation. Jon Katz.

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