Thursday, October 26, 2006
Attorney Geoffrey Fieger, a prominent Michigan attorney and former Democratic gubernatorial candidate (1998) is appealing a Michigan Supreme Court opinion that found his remarks directed at a panel of appellate court judges and delivered during a radio show were deserving of a reprimand. After the appellate court overturned a jury verdict for Mr. Fieger's client, he made certain statements about the judges, including that they were "jackasses." Complaints were filed with the Attorney Discipline Board of Michigan. According to the Supreme Court, "[o]n appeal to the ADB...the lead opinion...concluded that MRPC 3.5(c) and MRPC 6.5(a) did not apply to Mr. Fieger's comments because they were made outside the courtroom in a case they regarded as completed. They further observed that, if the rules did apply, then they were in violation of the First Amendment. A second opinion...agreed that Mr. Fieger's comments were protected by the First Amendment, but dissented from t he lead opinion's conclusion that the rules only apply to remarks made within the courtroom. A third opinion, agreeing in part with the second opinion...held that Mr. Fieger's remarks, even though made outside the courtroom, were prohibited by the rules, and that the remarks were not protected by the First Amendment. The sum of all this was that a majority (albeit not the same majority for each issue) concluded that the two rules applied to Mr. Fieger's out-of-court statement, while a different majority concluded that those rules were in violation of the First Amendment." The Michigan Supreme Court agreed to "consider whether the remarks by Mr. Fieger, although uncontestedly discourteous, undignified, and disrespectful, nevertheless did not warrant professional discipline because they were made outside the courtroom and after the Court of Appeals had issued its opinion. We also granted leave to appeal to consider whether the ADB possesses the authority to decided issues of constitutionality and whether the two rules in question are constitutional."
The Court decided among other things that Mr. Fieger made the remarks before the case was completed, allowing lawyers' speech to be more regulated during an on-going case than after all appeals are exhausted; that the rules apply to comments toward the tribunal outside as well as inside the courtroom; that the ADB has no power to declare the rules unconstitutional; and that the rules are not unconstitutionally vague. Read the entire opinion here.
Noting that "[t]he case presents an interesting First Amendment attorney speech issue that has split the lower courts," David Moran, Mr. Fieger's attorney, has kindly provided a copy of the cert petition