Discipline for Acting Like a Jerk?

Eric Muller's site "Is That Legal?" is one of my favorite blogs (or "blawgs," if you like that jargon).  He spends a lot of time carefully debunking the silliness that sometimes passes as discourse in the blogosphere, and for this effort he is often rewarded with vituperative e-mails.  Recently he received this bit of abusive e-mail, from a lawyer no less, and posted it on his site.  (Basically the message questions Muller's manhood.)  Brian Leiter suggests that someone should report the flamer to the Illinois bar.  Can anyone think of a reasonable basis for doing so? 

Lawyers are prohibited by Rule 8.2 from making, with NY Times v. Sullivan actual malice, false statements about the qualifications or integrity of a judge.  Although he probably deserves to be, Muller is not a judge.  Lawyers may not engage in conduct that has no substantial purpose other than to embarrass, delay, or burden a third party, Rule 4.4(a), but this rule applies only where the laywer is acting in a representative capacity.  There are all sorts of obligations of decorum and candor in the 3-series rules, but these all apply only to conduct before a tribunal.  That leaves only the catch-all provisions of Rule 8.4 -- conduct involving dishonesty, fraud, deceit, or misrepresentation (i.e. if Muller is really a tough guy) or conduct prejudicial to the administration of justice.  In my view, these provisions ought to be interpreted consistently with the first amendment protections afforded to hyperbolic speech, even if shocking, offensive, or threatening, as long as it doesn't constitute a clear and present danger of imminent violence -- see, e.g., Cohen v. Calif., Hustler v. Falwell, Texas v. Johnson, R.A.V. v. St. Paul, etc.

I realize Leiter is probably only kidding about reporting this yahoo -- it's far more effective to ignore him or mock his own manhood.  But the serious point here is that courts and bar associations sometimes interpret the disciplinary rules to prohibit speech that is constitutionally protected, on the theory that lawyers have special obligations of civility or decency, or that they surrender some of their expressive liberties in exchange for receiving a bar license (unconstitutional conditions, anyone?).  It's true that lawyers don't enjoy full-on Speaker's Corner expressive liberties while representing clients, but that doesn't mean they're not free to pop off, and act like jerks, when they're not acting in a representative capacity.

Comments

[John Steele]

Brad:

In California we had a rule banning "offensive personality," which many of us thought would effectively wipe out 75% of the legal profession. Since then, the rule was deemed unconstitutionally vague (as I recall).

[John Steele]

Here's the statute: California Business & Professions Code section 6068(f). "It is the duty of any attorney to do all of the following: ... (f) To abstain from all offensive personality."

As I said, though, I think that can't be used for discipline any longer.

[Brad Wendel]

I've always loved the wording of that statute -- the lawyer jokes must have been flying in the California legislature when it was drafted. If anyone is interested, the case holding the statute void for vagueness is United States v. Wunsch, 84 F.3d 1110 (9th Cir. 1996. The lawyer in that case was sanctioned for sending opposing counsel (a woman) a copy of a headline from a legal journal from an article reporting on gender stereotypes. The headline read: "MALE LAWYERS PLAY BY THE RULES, DISCOVER TRUTH AND RESTORE ORDER. FEMALE LAWYERS ARE OUTSIDE THE LAW, CLOUD TRUTH AND DESTROY ORDER."

[Eric Goldman]

I do think we've seen some discplinary actions for being a jerk. The one I was able to find most easily (although the facts support a few different violations) is http://www.uspto.gov/web/offices/com/sol/foia/oed/disc/tassan_bruce_a.pdf. Eric.

[David Giacalone]

This is clearly a situation where e-shaming [ http://blogs.law.harvard.edu/ethicalesq/stories/storyReader$3401 ] may be the most appropriate "discipline" for the lawyer in question. Of course, to utilize e-shaming, you need to help search engines find the shamee by naming the lawyer in question: here, it is David L. Gearhart, J.D., CPA, MBA, member of the Illinois and Indiana bars, and a 2001 graduate of John Marshall Law School. I will be naming David Gearhart at my weblog in my next posting.

[SupremacyClaus]

Reported a lawyer for calling for an attack on a Federal judge who had done nothing more than its job, rendering an adverse, but the only possible decision, under the law. This was done in public. It was not joking. It was seething.

Dismissed. Freedom of speech. The DC refused to contact the Judge for its reaction to the threat. Dismissed again after vehement protest and re-review.

Unless the conduct affects criminal cult enterprise interests, the Disciplinary Counsel is in the business of covering up violations of the crystal clear language of the Rules, blocking all recourse for the non-cult member. Its salary comes from the fees of the objects of its investigation. If it put its employer out of business, or intimidated it into better behavior, where would its salary come from?

Naturally, it has also dealt itself utter immunity and discretion for the completion of airtightness of rigging. It remains unclear if it has 11th Amendment immunity. The reply to such proposals, of usually very aggressive in-state attorneys? "I cannot commit suicide on your behalf, even at full fee."

[ethics minder]

For crying out loud, it was intended to be a personal communication sent via email to Leiter. Leiter not only made the inappropriate choice to post the message on his blog without permission, he identified the sender by name.

* [Editor's note: Down below, this poster has corrected a factual error in this comment, after the error was pointed out by Professor Leiter.]

[Brian Leiter]

It was sent to, and posted by, Eric Muller, not Leiter.

[John Steele]

Because this post "has legs," and is drawing a lot of readers and commentors, I guess I should be clear: disciplinary proceedings, let alone disciplinary punishment, would be an awful idea in this matter. (I think that's what most commentors have concluded as well.)

[ethics minder]

Oops, sorry Leiter...after reading paranoid comments posted by you and others I got my blog-reading eyes crossed.

** LEF Administrators - please replace Leiter's name with Muller in my post above (Posted by: ethics minder | May 10, 2005 05:27 AM).

[Brian Leiter]

Now the editors can delete "ethics minders" irrelevant comment and my original correction.

[Editor Note: Because I am a newbie, I have botched this sequence of events. My apologies. From now on, I will let commentors correct their own mistakes. In this incident, a previous poster incorrectly attributed a certain act to Professor Leiter, and when Professor Leiter pointed out the error, the commentor confessed error. Any continuing confusion is due to my mistaken belief that intervening would be less confusing than letting the commentors sort things out themselves. John Steele]

[Alex Tsiros]

After reading this thread, I find little logic in Brian Leiter's comments:

1) He calls for low-level name-calling in private to be reported to state bar associations.
2) He said it was "quite correct" to post a private email from another attorney on the Internet without consent.
3) He labeled a post critical of his comments as "irrevelant".

Let me guess, he is a career academic?

[David Giacalone]

I continue to hope that the prospect of being e-shamed (having your conduct described on the internet) will help deter unseemly lawyer conduct. It's only been five days since his offensive-juvenile email was sent, but if you Google ["David Gearhart" +lawyer], the first 5 results are about Lawyer Gearhart's jerky conduct. (with links to my weblog, Muller's and LEF). If Leiter had mentioned Gearhart by name, I'm sure his post would also be at the top of the results. Are we learning any lessons in self-restraint?

By the way: I do not believe that someone who responds to a weblog posting with a nasty email should expect anonymity.