JD Jungle - February 11, 2003

A Speech Code for Lawyers?
The Supreme Court may have to decide.

At a time when the law school community is deeply divided about the desirability of speech codes—Harvard Law School has one under consideration now—a little-noticed decision by the Indiana Supreme Court has imposed a draconian speech code on the lawyers of that state.

Pending the result of a lower-court rehearing, the Indiana case could be headed to the United States Supreme Court, where it—if it is affirmed—could dramatically affect the right of every lawyer in the country to criticize the judiciary. Thus, the attention of all lawyers should be focused on this potentially dangerous precedent.

In the Indiana case, a lawyer was suspended from practice for criticizing the opinion of the lower appellate court for being result-oriented. The criticism took the form of the following footnote in the appellate brief: "Indeed, the Opinion is so factually and legally inaccurate that one is left to wonder whether the Court of Appeals was determined to find for appellee . . . and then said whatever was necessary to reach that conclusion (regardless of whether the facts or the law supported its decision)."

The decision of the Supreme Court to suspend the lawyer was based on a 3–2 vote, with the deciding vote having been cast by one of the justices who was himself criticized in the footnote. That justice had been promoted from the Court of Appeals to the Indiana Supreme Court and did not recuse himself from the disciplinary case even though he was one of the victims of the "offending" footnote.(The justice has since recused himself from the rehearing petition, but that does not withdraw his vote from the disciplinary action.)

Two justices of the Indiana Supreme Court dissented from the disciplinary decision, arguing that the footnote in question contained "rhetorical hyperbole" that was protected by the First Amendment. One of the dissenting justices pointed out that judges commonly attack their colleagues on the bench with similar hyperbole, citing particularly opinions by Justice Antonin Scalia, who is well known for his personal attacks on the integrity and rationality of his fellow justices. The majority decided to impose the relatively harsh sanction of suspension because the lawyer in question "chose to contest this matter," presumably instead of simply rolling over and admitting he was wrong.

Firsthand experience
It is not surprising to me that this Stalinist decision—punishing a lawyer for expressing a critical opinion and then justifying the punishment because he didn't seem duly remorseful—was rendered by the Supreme Court of Indiana. I have argued cases all over the world, and I have never encountered a legal system as result-oriented as that of Indiana or a chief justice as self-protective as Chief Justice Randall Shepard (who joined the majority in disciplining the lawyer). When I agreed to argue the rape-conviction appeal in Indiana for former heavyweight champion Mike Tyson several years ago, I was warned by several members of the bar about the Indiana court system. Then I experienced it firsthand.

While attending a multiclass Yale Law School reunion, a woman approached me and told me that New York lawyers' arguments don't go over well in Indiana. I asked her who she was, and she told me she was the wife of the chief justice, who had graduated from Yale several years after I had. I immediately ended the conversation and walked away telling her that any further discussion would be inappropriate. (This encounter was attested to by an affidavit from a witness.) Shortly thereafter, Justice Shepard recused himself (he gave no reason at the time), and the eventual decision in the case was a 2–2 tie, which resulted in Tyson's conviction being affirmed. In an opinion offered roughly a year later regarding his recusal, Justice Shepard stated that he opted to recuse himself before the Court of Appeals ruled on Tyson's appeal in order to demonstrate that his "recusal was not outcome-driven."

Our research disclosed that Justice Shepard had written several opinions that, if followed, would probably have led him to rule in our favor. But in the opinion of several Indiana lawyers familiar with Judge Shepard's rulings who were consulted at the time, he might not have wanted to cast the deciding vote in favor of an accused rapist because of controversial accusations made about him by a fellow judge who was running against him several years earlier. According to the National Law Journal, "Fellow Justice Alfred J. Pivarnik . . . accused [Shepard] of having abused alcohol, smoked marijuana, and made sexual advances toward men."

Justice Shepard denied the accusations, and although he won the election and no formal charges were brought against him, it was the opinion of the Indiana lawyers our team consulted that Shepard may have been concerned about these issues resurfacing if his vote was decisive in the Tyson appeal. There is no evidence that Justice Shepard deliberately sent his wife over to me to provoke a recusal. I do not know. But I do know that Shepard's recusal protected him from a potentially damaging public controversy.

Flaws of the system
It is always systems most deserving of criticism that impose limitations on the freedom to criticize. There is an old joke about a dissident who called Stalin corrupt. He was accused not of slander but of revealing a state secret. That is essentially what the Indiana lawyer has been convicted of—namely exposing the flaws of the Indiana judicial system.

Were I a member of the Indiana bar, I could not offer my opinion about Justice Shepard without fear of judicial reprisal. Fortunately, I am a member of the bar of Massachusetts, where the First Amendment still means something. Because I am not subject to the censorship of the Indiana courts, I feel a special obligation to speak about what I experienced when I argued a case in that jurisdiction—despite what some may characterize as sour grapes. But the question remains: Will freedom of speech for lawyers, inside and outside Indiana, remain vibrant after the current Supreme Court majority—which was shell-shocked by the vituperativeness of the criticism directed at it following Bush v. Gore—has its crack at this important issue?