Gillers, Regulation of Lawyers (Aspen Publishers, 7th ed)
American Bar Association, Model Rules of Professional Conduct (2007 ed)
Michigan Rules of Professional Conduct (available for download at www.michbar.org/generalinfo/pdfs/mrpc.pdf)
1. Political Speech -Attorneys and the First Amendment
· 1st Amendment Right – lawyers DO NOT really have a 1st amendment right to free speech inside the courtroom.
o Outside the Courtroom – strict scrutiny – requires compelling state interest
· Balancing Interests
o State Interests
§ Fairness of the trial process
§ Lawyer is officer of the court with special privileges
o Negative Effects
§ Individual liberties
§ Right of public to hear
· Gentile case(Supreme CT)–holding that public utterances by an attorney need not present a clear and present danger to a fair trial to be subject to prohibition)
o ABA Model Rule: Limits 1st Amendment free speech by deferring speech until AFTER the trial is over.
o Before trial, there is a potential to influence witnesses, jurors, etc.
· Grievance Administrator v Fieger–
o MI Rule 6.5(a) Civility Rule – What’s “Civil” – holding that attorney’s comments violated attorney disciplinary rules prohibiting undignified or discourteous conduct toward a tribunal and requiring attorneys to treat with courtesy and respect all persons involved in the legal process).
o Not clear what is “Civil” – most decisions in MI are arbitrary. It is hard to know where the line is. The civility rule has no counterpart in the ABA Rules and this is routinely thrown out!
MI Rule 3.5 – Impartiality And Decorum Of The Tribunal
A lawyer shall NOT:
(c) engage in undignified or discourteous conduct toward the tribunal.
ABA Model Rule 3.5(d)
A lawyer shall NOT:
(d) engage in conduct intended to disrupt a tribunal.
MI Rule 6.5(a) Professional Conduct
(a) Courtesy and Respect to the Tribunal – A lawyer shall treat with courtesy and respect all persons involved in the legal process. A
ntial harm to an individual or to the public interest; and
(7) in a criminal case, in addition to subparagraphs (1) through (6):
(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.
(c) Refute a prior public statement – a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.