By Tresa Baldas
The National Law Journal
A constitutional battle involving a lawyer's right to insult a judge has been joined at the Michigan Supreme Court, which could set new limits on what lawyers say and do outside the courtroom.
And at the center of it all is Geoffrey Fieger, the outspoken former attorney for assisted-suicide doctor Jack Kevorkian.
Fieger faces a reprimand from the Michigan Attorney Grievance Commission for insulting three state appellate judges on a radio talk show in 1999 after the judges overturned a $15 million verdict he won in a medical malpractice case.
According to the grievance commission, Fieger used numerous obscenities, called the justices "three jackass court of appeals judges," declared war on them and referred to them as "Nazis."
Big deal, argued Fieger's lawyer, Michael Alan Schwartz, maintaining that Fieger's comments outside the courtroom are protected by the First Amendment.
"There's no law that says you've got to be dignified," said Schwartz of Schwartz, Kelly & Oltarz-Schwartz in Farmington Hills, Mich. "Why are they looking to Fieger and what did he do that was so terrible? He made some uncharitable comments about a couple of judges in the course of a radio program."
MICHIGAN'S UNIQUE RULES
But according to the grievance commission, Fieger violated two Michigan rules regarding professional conduct, including a "courtesy rule," which is unique to Michigan and requires that lawyers treat judges with respect and courtesy.
"We all agree that attorneys have the right to criticize judges. There's no doubt about that ... . They just have to do so in a professional way," said Robert Edick, deputy administrator for the grievance commission.
Edick said the commission is asking the state high court to draw the line between an attorney's right to free speech and an attorney's obligation to courtesy and professionalism.
"This is more of a very pure courtesy case," said Edick, adding that the commission also wants clarity on whether it can "prosecute lawyers for repeated public acts of discourtesy."
In 2004, the state Attorney Discipline Board ruled that Fieger's comments were protected by the Constitution. But the grievance commission believes Fieger went too far with his antics and has appealed to the Michigan Supreme Court, which heard arguments from both sides last week.
Attorney George Kuhlman, ethics counsel with the American Bar Association, said there is no ABA rule that specifically says that a lawyer's statements cannot be disrespectful of the court. He noted that there is an ABA rule that prohibits lawyers from using reckless disregard or making a false statement about a judge's integrity.
Kuhlman also noted that disciplinary boards can call into question the private conduct of lawyers, particularly if it reflects on their fitness to practice law.
"Of course you can go after somebody for saying something about somebody outside a courtroom," Kuhlman said. "It doesn't matter where it occurred. It could be on an island [in] the south Pacific. If it reflects on the lawyer's fitness to practice law ... it could be a violation of the rules of professional conduct."
In the Fieger case, Kuhlman said that it will be up to the court to decide whether Fieger's comments were protected by the First Amendment. He said case law on such matters tends to go in the direction of the First Amendment.
Kuhlman cited a 1995 ruling from the 9th U.S. Circuit Court of Appeals, which cleared an attorney, who had called a judge anti-Semitic, of any wrongdoing. The 9th Circuit held that the accusation of anti-Semitism was protected because the lawyer gave a factual basis for his opinion. Standing C Committee on Discipline v. Yagman, 55 F.3d 1430.
Meanwhile, Schwartz said he too has plenty of case law to back up Fieger's First Amendment claims.
He cited the U.S. Supreme Court's 1947 Craig v. Harney decision, in which the high court ruled in favor of a group of individuals who were held in contempt for publishing derogatory articles about a judge.
Schwartz said that if the Michigan Supreme Court rules against Fieger in this case, that would have "a chilling effect on an attorney's ability to engage in criticism of government officials.
"That's what we're talking about here. Judges are government officials, and once we allow people to be harmed for criticizing government officials, we've lost an enormous bunch of freedoms," Schwartz said. "That's pretty, pretty, pretty bad."