For years, the judiciary created and enforced lawyer ‘gag’ rules. Even though the First Amendment applies to the entire country (including all the states), the courts decided to create these ‘gag’ rules, which constricted lawyer speech.
Courts themselves enforced some of these rules, within the case. Some have been enforced by lawyer ‘disciplinary’ agencies (in Minnesota, that is the Lawyers Board).
These ‘gag’ rules have largely, over time, been declared unconstitutional, in recognition of the First Amendment or other parts of the US Constitution. (See Wecht case for example). However, over time, gag rules contributed to a culture in which lawyers became afraid to speak about judges. Lawyers feared they could be sanctioned by a court, or be charged with some type of lawyer misconduct, impairing their license and their ability to make a living. And that fear was fostered.
For example, in 1990, a lawyer by the name of Jack Graham identified information about a federal judge fixing a case. Fixing a case means the judge agrees in advance with someone, how to decide the case. (It’s like a boxer throwing a fight.) It’s obviously wrong, and many would agree it is a major evil in our justice system.
I’d like to tell you that Graham’s report caused the justice system to swing into action to eradicate case-fixing. Not. It was the lawyer who reported the information he’d received about the judge – who was disciplined. They suspended Graham’s license. How did our Minnesota Supreme Court do this? Two main ways:
First, it ignored facts that supported the lawyer who spoke out. (Avoiding key facts is a judicial technique that I’ll discuss in later posts.)
Second, they twisted the law. Rather than following the Supreme Court of the United States (which is the final word on interpreting the US Constitution), the Minnesota Supreme Court created a version of the law just for lawyers who criticized judges. Instead of requiring that the government prove subjective ‘malice’ (which means showing that Graham knew he was making a false statement), the Minnesota Supreme Court decided that judges, in their infinite wisdom, would decide whether they thought that Graham should be believing himself. (I’ll talk more about the Graham case in later posts. I’d like to be clear that none of the sitting justices were on the court back then.)
Sound goofy? Well, it is. It really stripped lawyers of their First Amendment right to criticize the public officials that we observe every day in court. And, it meant that judges could put lawyers in fear of ever criticizing them, of ever reporting judicial misconduct (whether in the case, or to a disciplinary agency), for fear of losing their license. How many lawyers do you think lined up after that to report judicial misconduct?
Why did judges do this? What were they afraid of?
In my studied opinion, I think judges gagged lawyers for two main reasons:
1. The bad judges
The bad judges sought to gag lawyers out of fear. The bad judges did not want their conduct called out for fear they’d get in trouble. Lawyers are trained in the law and courtroom procedures, and we observe judges all the time. We are the people in the courtroom most likely to know if a judge is doing wrong, and be able to prove it. If they prevent the lawyers from bearing witness against them, the bad judges can get away with quite a lot.
2. The good judges
I believe the good judges went along with the gagging, because of some underlying belief that if we talk about our problems (such as judicial misconduct), we will weaken the third branch of government. That’s a good motive – if the underlying premise is accurate. But good motives do not support stifling the First Amendment. (US Supreme Court case Brown ).
In my opinion, we strengthen the third branch by discussing potential judicial misconduct. We show our trust of our public when we do so. We show that we are willing to discipline our own. We protect clients (the customers of our system). And we lead by example, showing we are worthy of those words carved on the buildings we work in.
Government does not have the right to protect one viewpoint over others. If we are going to gag lawyers speech, members of the public should at least be able to have input as to why that is occurring.
I believe we have moved through the worst of the storm. I believe that we are seeing change in our system, even now. And I believe more change will come.
I have great faith in this branch of government to right itself. We’ll get through this next phase of our growth (where, yup, we actually talk about the bad judges), no matter how uncomfortable change can be. And maybe rather than a culture of fear, we can find a better way.