f/k/a archives . . . real opinions & real haiku

July 28, 2003

Tip to Lawyers: You Gotta Know WHERE to Exercise Your Free-Speech Rights

Filed under: pre-06-2006 — David Giacalone @ 12:55 am

Steve Minor at SW Virginia Law Blog disrupted my lazy Sunday evening.  He baited me to comment on the free-speech issues raised by the case of Indiana attorney Michael A. Wilkins, who was disciplined for stating in a footnote to a brief exactly what is said every day in lawyers’ lounges and law firms across the planet (cyberspace and universe, too).  To wit, that it often seems as if a judge has started with a predetermined outcome and mangled the facts and the law to reach the desired conclusion.

Marcia Oddi at The Indiana Law Blog pointed to an Indiana Star column that mentioned the Wilkins matter this morning (July 27, 2003) and his intention to bring the free-speech issue to the U.S. Supreme Court.  Marcia does a great job of linking to the history of this case, and summarizing it, so I won’t do that here, except to quote a few explanatory passages from a National Law Journal article, dated Nov. 11, 2002, by Gary Young:

In 1997, Wilkins signed on as local counsel to Michigan Mutual Insurance Co. in a dispute with an Indiana bowling alley over insurance coverage. A three-judge panel of the court of appeals ruled against Michigan Mutual in 1999, with Rucker concurring. Michigan Mutual’s lead counsel, Jeffrey R. Learned of the Southfield, Mich., firm Morrison, Mahoney & Miller, wrote a brief urging the Supreme Court to take review. In a footnote, Learned wrote that the court of appeals opinion “is so factually and legally inaccurate that one is left to wonder whether the Court of Appeals was determined to find for [Michigan Mutual’s opponent] and then said whatever was necessary to reach that conclusion.”

The Supreme Court declined to review the case and struck the brief from the record, describing the footnote (in 1999) as “a scurrilous and intemperate attack on the integrity of the Court of Appeals.”

Wilkins was suspended under a disciplinary rule drawn from the ABA’s model code and widely adopted by state and federal courts. Indiana Professional Conduct Rule 8.2(a) states that a “lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to the truth or falsity concerning the qualifications or integrity of a judge.” (emphases added)

Those who know me know that I have an ongoing romance and camaraderie with irreverence, sarcasm and irony.  So, they might expect me to do a Patrick Henry and defend to the death (or disbarment) Wilkins’ right to put those words in the brief to the Indiana Supreme Court.  However, I can’t do that, because my job here is to advocate for the client’s interests, not the lawyers’ rights.

Quite simply, I think a lawyer needs to have the good judgment to frame arguments in a manner that doesn’t unduly offend a court — precisely because being offensive is far more likely to hurt than to help the client.  This isn’t a matter of the lawyer being able to forcefully advocate for the client.  It comes down to whether the lawyer is able to stifle his or her need to insult the court, and instead come up with persuasive arguments to prove his point. Most of us learned before we got out of grammar school that mouthing off to the wrong person at the wrong time, or in the wrong place, is just plain stupid (as in counter-productive). (My posting a couple days ago about stifling blawggers convers a related theme.)

Having said this, the Indiana Supreme Court has demonstrated once again, by its own lack of self-discipline, that trying too hard to preserve the dignity, authority or image of any institution almost always backfires — making the institution resemble the back side of a horse, rather than the heroic rider on the statue. The publicity their disciplinary actions against Wilkins has given those few offending words — which were “tame”, but clearly attacked the integrity of the lower court — has done far more to weaken the public’s regard for the judicial system than the buried footnote every would or could have done on its own. The flipflop on the sanction to be given Wilkins didn’t help their image or authority either.

Finally, I don’t know why the two dissenting judges didn’t just say “Wilkins did nothing to deserve punishment under the Rules of Conduct.  He really didn’t write the words and they really weren’t so bad.”  [Note: I have not actually read their dissents.]  Do they really think the First Amendment allows a lawyer to say practically anything in a brief or to a court with immunity from discipline?   I mean, their free-speech argument seems so weak, you’d almost think they were working backwards from a predetermined . . . . .

Update cum apologia: It’s Monday morning as I write this, and I’m as rested as I’m likely to be today.  So, with a nudge from Marcia Oddi, I have finally perused the dissenting opinions in the Wilkins disciplinary decision  (Oct. 29, 2002).  For any visitor who failed to notice my attempt at irony and humor in the last paragraph above, I now solemnly opine that each dissenter (Sullivan, J. and Boehm, J.) offers thoughtful comments about the relationship between the disciplinary process and free speech.  Indeed, in a true test of their wisdom, they make some of the very arguments I so feebly and crudely offered in my original posting.   My bottom line remains the same: Whatever the limits of an attorney’s free-speech rights when before a court, for the sake of the client, lawyers should make their best arguments, in a manner unlikely to offend the court, so that the offense does not become more important than the point being made. 


  1. But wouldn’t an attorney who ‘rightly’ criticized a ‘biased/predetermining’ court serve the future interests of all their clients by exposing the proverbial skeletons in the closet that may need cleaning out?

    Comment by Mearis M. Martin, III — July 28, 2003 @ 11:13 pm

  2. Thanks for commenting, Mearis,  I’m certainly not saying that genuine charges of a “pre-judiced” court should not be made by attorneys, for the sake of their instant client or future parties.  But, there are far more appropriate ways and places for raising a genuine, good faith complaint of judicial bias/predetermination.  Sly innuendo or snotty, bald assertions buried in a footnote, without the slightest detail, is not the way or the place — an indication that counsel were venting frustrations rather than exposing true corruption.  If the only evidence of the corruption of an entire appellate panel is its refusal to acknowledge the facts and apply the law, it seems preferable to point out those failings and let the Supreme Court decide what follow-up is appropriate. 

    Comment by David Giacalone — July 29, 2003 @ 9:39 am

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