Bad boys, what ya gonna do?
The lack of civility in the legal profession has been the subject of innumerable anguished articles in bar magazines for the past couple of decades or so, to the extent that the Ohio Supreme Court decided several years ago to mandate continuing legal education on the subject, tossing an hour of "professionalism" on top of the required ninety minutes on ethics and substance abuse. But just when you thought it was safe to go back into the water, along comes a Michigan federal judge to remind us that your calling opposing counsel a lying buttweasel might have First Amendment ramifications.
The case stems from one the profession's true bad boys, Geoffrey Fieger, a Michigan attorney who gained notoriety from his representation of Jack "Dr. Death" Kevorkian. Fieger apparently took the "zealous advocacy" part of the Code of Professional Conduct to heart, and does everything short of showing up for trial wearing a t-shirt proclaiming, "Doesn't Play Well With Others." Fieger's no stranger to Ohio in general, and Cuyahoga County in particular; a few years ago, he won a $30 million judgment in a malpractice case, only to have the trial judge grant a new trial because he was so incensed by Fieger's courtroom tactics.
That verdict wound up being reinstated, but Fieger wasn't so lucky in a 1997 Michigan case, where a court of appeals tossed a $15 million malpractice verdict for insufficient evidence, also noting that Fieger's "truly egregious" misconduct was "so pervasive" that it "completely tainted the proceedings" and would have justified a new trial anyway.
Fieger, shall we say, did not take this well. He had a radio show at the time, and used it as a platform to vent his spleen about the decision, calling the appellate judges Nazis and telling them to "kiss my ass." And those were his more temperate remarks; as the opinion of the Michigan Supreme Court sanctioning him for misconduct noted,
Mr. Fieger, referring to his client, then said, "He lost both his hands and both his legs, but according to the Court of Appeals, he lost a finger. Well, the finger he should keep is the one where he should shove it up their asses." Two days later, on the same radio show, Mr. Fieger called these same judges "three jackass Court of Appeals judges." When another person involved in the broadcast used the word "innuendo," Mr. Fieger stated, "I know the only thing that's in their endo should be a large, you know, plunger about the size of, you know, my fist."
The opinion then notes dryly, "Subsequently, Mr. Fieger filed a motion for reconsideration before the same panel." Presumably, Fieger's motion did not include references to the judges' fascist ideology or their hoped-for anal violation, but, unsurprisingly, it was denied nonetheless.
The Michigan Supreme Court reprimanded Fieger for violating Rule 3.5(c) of the Michigan Rules of Professional Conduct, which forbids lawyers to engage in "undignified or discourteous conduct" toward tribunals, and Rule 6.5(a), which commands lawyers to treat everyone involved in the legal process with "courtesy and respect." Just last month, though, the US District Court for the Eastern Division of Michigan determined that the rules were so vague and nebulous that they violated the First Amendment, and struck down Fieger's sanction.
Not too much should be made of the case; even the dissenters in the Michigan Supreme Court argued that Fieger's conduct couldn't be sanctioned since it didn't take place in the courtroom. It's doubtful that anyone is going to take the decision as giving a green light for unprofessional conduct.
Or, more accurately, for more unprofessional conduct than they're already engaging in. Let's face it, there's not much empirical or anecdotal evidence to support the notion that the added biennial hour of CLE on the subject has had a mollifying effect on our professionalism, especially for some portions of the bar. Frankly, if I ordered twenty tons of sonsofbitches, and you sent me two Cuyahoga County divorce lawyers on a flatcar, I'd call it substantial performance.