Wednesday, December 31, 2014

Wisconsin state bar discourages free speech

I was just thinking that I haven’t written a judge-bashing blog post in quite a while.  And then, out of the blue, I got a call from criminal defense lawyer and free speech advocate Terry W. Rose, telling me about an outrageous opinion piece in the November issue of Wisconsin’s state bar magazine.  This piece, subtitled “never provide information in blog posts . . . that criticizes judges,” is especially alarming because it was written by a lawyer and, worse yet, the vice chair of our state bar professional ethics committee.  Essentially, the piece makes two claims.  Its first claim pertains to lawyers discussing cases in which they are, or have been, involved as counsel.  (I’ve already written about that tandem of bizarre ethics rules in an earlier blog post and in a forthcoming law review article.)  And its second claim — the claim I want to address in this post — is that ethics rules 20:8.2 and 20:8.4(c) “make it very clear that a lawyer may not criticize a judge in most circumstances and doing so could result in significant sanctions.”

In a reply in the December issue of the state bar mag (go to this link and scroll down a bit), Attorney Charles W. Kramer corrects the vice chair of ethics by accurately stating that, first, the rules simply say no such thing.  The rules prohibit “false” statements of fact, along with lawyer conduct that involves “dishonesty, fraud, deceit or misrepresentation.”  They simply do not prohibit a lawyer from making critical, but true, statements of fact about a judge, nor do they prohibit a lawyer from expressing a critical opinion about a judge.  And second, Kramer explains that criticism, especially when made about a public figure like a judge, is protected free speech under the Supreme Court’s N.Y. Times v. Sullivan.

Kramer already did the heavy lifting, but I will make some additional points.  First, we should all be very alarmed that the vice chair of the state bar professional ethics committee is unable (or unwilling) to accurately read the ethics rules.  Stated more kindly, we should be alarmed that he makes such a colossal leap from a rule that prohibits fraud and deceit to the conclusion that “a lawyer may not criticize a judge in most circumstances and doing so could result in significant sanctions.”  

Second, we should all be very alarmed that the vice chair is discouraging political speech.  Granted, he’s not chilling my speech — threatening "significant sanctions" will only cause me to ramp-up my constitutionally protected activities.  But there are probably some young lawyers who read the state bar mag, and, according to the state bar’s own study, often feel “terrified” and live in “fear of being disbarred.”  The vice chair’s “strong recommendation” that lawyers “not criticize a judge” because of “the great risk” of being disciplined (click here and scroll down) runs the very real risk of chilling the speech of some lawyers.

And third, I’m really getting tired of the state bar.  Compulsory state bars are nothing more than “great public protection perpetual motion machine[s]” that are concerned more with pleasing the general populous and kowtowing to authority figures than advocating for their members.  And now, this bar piece is telling us not to criticize judges at a time when Wisconsin Supreme Court justices have “basically devolved into caricatures of themselves worthy of MTV reality show fame,” and even circuit court judges are in the news for all the wrong reasons.  Yes, indeed, we should all stop criticizing judges at once.  Thanks, vice chair of the state bar professional ethics committee, for your valuable contribution to the state bar mag and for keeping within the bar’s practice of hyper-cautiously preserving the delusion of respectability, avoiding conflict of every kind, discouraging speech, and, of course, bowing to authority figures. 

But, in the vice chair’s defense, his rebuttal does specifically state that “a blogger should not criticize a judge in a blog post.”  (Again, click here and scroll down.)  He further adds that, with regard to judicial criticism, we should use “appropriate techniques for such communication.”  I’m not sure why he would think it would be an ethics violation to criticize a judge in a blog post but not, for example, in a book, a law review article, or simply in conversation with another lawyer.  In any case, the vice chair will be pleased to know that The Legal Watchdog blog, while not ceasing operation, will be shifting much of its focus to what he might find to be a more “appropriate technique” for judge-bashing.  Check back January 6th for The Legal Watchdog podcast, where my co-hosts and I will be verbally criticizing judges.  And if time permits, we might even criticize our friendly state bar.   


  1. I want to bring up a case that illustrates,what I would call the holy judge approach to any criticism of justices or freedom of speech in a courthouses. The name of the case is Braun v Baldwin from our own beloved 7th Circuit. In Milwaukee,two citizens were promoting jury nullification on Jury Day in front of the cafeteria at the courthouse. The Court held that the citizens has no 1st Amendment at a courthouse,and that jury nullification is illegal position. Secondly,the Court upheld the arrest of one of the citizens.for disorderly conduct. So much for freedom of speech and expression.

  2. Thanks for posting about this important free speech issue. And although lawyer free speech is more constrained than that of other citizens, I am pleased you have identified the contours and parameters. And while your state lawyer disciplinary vice-chair may indeed be guilty of self-serving hyperbole, it almost doesn't matter when disciplinary authorities believe they have the latitude to nonetheless overprosecute and overcharge those lawyers they deem wayward. This is what happened to Indiana lawyer Paul Ogden.