September 2007

Topic:
Courtesy and civility rules that do not allow any exception for truthful speech, political speech, or for speech that does not create a substantial likelihood of material prejudicing a pending case, are overbroad and cannot withstand constitutional scrutiny.

During the Summer of 2006, the Michigan Supreme Court concluded in a 4-to-3 decision that certain remarks made by Geoffrey Nels Fieger on his talk-radio program violated Michigan’s courtesy and civility provisions, Rules of Professional Conduct 3.5(c) (prohibiting undignified or discourteous conduct towards a tribunal) and 6.5(a) (requiring a lawyer to treat with courtesy and respect all persons involved in the legal process). The Court believed that Fieger’s statements, broadcast in 1999, warranted a reprimand. Grievance Administrator v. Geoffrey N. Fieger, 476 Mich. 231, 719 N.W.2d 123 (Mich. July 31, 2006). Discipline was imposed notwithstanding Fieger’s arguments that the courtesy provisions were unconstitutional. In its ruling, the Court reversed a decision by a divided Attorney Discipline Board. The case was remanded to the ADB for the imposition of a reprimand. The reprimand was effective on January 18, 2007. (http://www.adbmich.org/coveo/notices/2007-01-25-01n-55.pdf). Fieger filed a petition for writ of certiorari to the United States Supreme Court, but his request for review was denied. Fieger v. Michigan Grievance Administrator , 127 S.Ct. 1257, 167 L.Ed.2d 75 (February 20, 2007).

The reprimand had its genesis in Fieger’s filing of a medical malpractice action that resulted in a $15 million verdict in favor of a client. On appeal, a three-judge panel of the Michigan Court of Appeals unanimously ruled that the defendants were entitled to a reversal because the plaintiff had failed to provide legally sufficient evidence that would justify submitting the case to a jury. Additionally, the appellate court noted that Fieger’s actions during the course of the trial would have warranted a new trial in the matter. Three days after the opinion issued, Fieger made the following comments on his then daily radio program regarding the appellate justices who decided the case: “Hey Michael Talbot, and Bandstra, and Markey, I declare war on you. You declare it on me, I declare it on you. Kiss my ass, too.” Referring to his client, he added, “He lost both his hands and both his legs, but according to the Court of Appeals, he lost a finger. Well, the Finger he should keep is the one where he should shove it up their assess.” Two days later, on the same radio program, he made the following comments about the appellate panel when another person involved in the broadcast used the word innuendo:

[T]hree jackass Court of Appeals judges. I know the only thing that’s in their endo should be a large, you know, plunger about the size of, you know, my fist. They say under their name, ‘Court of Appeals judge,’ so anybody that votes for them, they’ve changed their name from, you know, Adolf Hitler, Goebbels, and I think-what was Hitler’s-Eva Braun, I think it was, is now Judge Markey, she’s on the Court of Appeals.

Fieger is the former lawyer for Dr. Jack Kevorkian, a former Democratic gubernatorial candidate in Michigan, and the older brother of Knack vocalist Doug Fieger. He is licensed in Arizona, Florida and Michigan. His web page describes him as “best known for his real passion in life: winning trials. He has won more mutli-million dollar awards than any other attorney in the country…He has been characterized by his opponents as extremely well prepared, intimidating, charismatic…and the lawyer they would hire if they needed representation.” (http://www.fiegerlaw.com/about_geoffrey_fieger.html). Currently, he is the subject of a federal criminal indictment charging him and a law partner with making $127,000 in illegal campaign contributions to the 2004 presidential campaign of John Edwards.

During the course of the lawyer disciplinary proceedings, Richard L. Steinberg, a Detroit personal injury lawyer, joined forces with Fieger. Both men filed a declaratory judgment action in the United States District Court raising constitutional challenges to Rules 3.5(c) and 6.5(a) and naming the Michigan Supreme Court and its seven justices as defendants. They did not directly attack the Fieger disciplinary proceeding, instead arguing that the courtesy provisions were unconstitutional on their face and violated both the First Amendment right to free speech and the Due Process Clause of the Fourteenth Amendment because they were overly broad and vague. The federal court agreed with the plaintiffs and ruled that the courtesy provisions were unconstitutional on their face. Fieger v. Michigan Supreme Court , 2007 WL 2571975 (E.D.Mich. September 4, 2007).

The court ruled that, although states have a legitimate interest in restricting attorney speech both to protect the fair administration of justice and to preserve the judiciary's integrity as well as the public's perception of it, such interests do not extinguish a lawyer’s free speech and due process rights. According to the federal court, limiting an attorney's extrajudicial criticism of a branch of government in the name of preserving the judiciary's integrity is likely to have an unintended, deleterious effect upon the public's perception, since attorneys are often best suited to assess the performance of judges. The court ruled that there is a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Moreover:

In this case, the vague and overbroad courtesy provisions that enforce silence in the name of preserving the dignity of the bench, does not override an attorney's right to speak her mind against public institutions, especially an elected judiciary, regardless of whether that speech is in good taste.

The Court concluded that attorney speech concerning a court's actions in a case is political speech and ruled that, although it is assumed that judges will ignore the public clamor or media reports and editorials in reaching their decisions and by tradition will not respond to public commentary, the law gives judges as persons, or courts as institutions, “no greater immunity from criticism than other persons or institutions. The operations of the courts and the judicial conduct of judges are matters of utmost public concern.” The Court paid special heed to the fact that Fieger's comments were made outside the courtroom. Where an attorney's regulated speech is removed from the courtroom, courts engage in “a balancing process, weighing the State's interest in the regulation of a specialized profession against a lawyer's First Amendment interest in the kind of speech that was at issue.” Thus, the further an attorney's speech is from the judicial process or the closer it is to the end of a pending case, the less weight that should be given to a State's interests in regulating the profession. The courtesy provisions failed to pass constitutional muster because, as interpreted by the state, the rules prohibited any criticism of a tribunal whether warranted or unwarranted, political or apolitical, truthful or false, vulgar or artful. There were no exceptions for truth, for political speech, or for speech that does not create a “substantial likelihood of material prejudice” to a pending case. Finally, the provisions were considered fatally vague. The federal court believed that the terms “discourteous” and “disrespectful” do not allow a person of ordinary intelligence to understand their meaning. As a result, declarative relief was granted and Michigan Rules of Professional Conduct 3.5(c) and 6.5(a) were ordered unenforceable by the state lawyer regulator.