May 30, 2017 Practice Points

Are There Limits to Free Speech in the Courtroom?

By Florence M. Johnson

Recently, an overzealous local criminal attorney and former sparring partner of HLN's Nancy Grace got into hot water about comments he made during a closing argument. During a trial concerning sexual assault, he referred to women as "the weaker sex" and further suggested that they are "especially good at lying." These comments became public record after the trial, and, to the surprise of no one, sent the social media sphere into overdrive. The Twitterverse was quick to point out the existence of powerful and successful women everywhere, and some questioned whether this attorney should be litigating for other female clients.

Ultimately, this lawyer won an acquittal for his client. While his strategy proved successful for the case, his comments may well have alienated half of his future clients. Responding to the backlash from his remarks, he added fuel to the fire by saying that he did not care if folks were offended because "smart people knew what he meant."

There are many layers to unpack here. Are the offended parties not smart, as he implied? Are women weak? Are women exceptionally good at lying? Are there limitations to what can and cannot be uttered in court for a client's benefit? For the sake of brevity, this practice pointer will address the last question.

Is All Really Fair in the Argument Phase of Trial?
Consider Model Rule 8.4 as it was amended by the ABA's House of Delegates in August 2016 at the ABA Annual Meeting. The amended text reads (emphasis mine) that it is professional misconduct to "engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law." (emphasis added)

While this rule's amendment seems clearly designed to protect individuals at risk of marginalization, it has its detractors. Some fear that its language is imprecise, and therefore can infringe on an attorney's right to free speech. Texas Attorney General Ken Paxton, a vociferous opponent to this amendment, penned his displeasure to the Texas State Senate in December 2016. He wrote, "While decisions of the United States Supreme Court have concluded that an attorney's free speech rights are circumscribed to some degree in the courtroom during a judicial proceeding and outside the courtroom when speaking about a pending case, Model Rule 8.4(g) extends far beyond the context of a judicial proceeding to restrict speech or conduct in any instance when it is 'related to the practice of law.'"

Interpretations of the true beginning and end of a case aside, it behooves all lawyers to avoid reckless speech in and out of the courtroom. You may be subject to courtroom admonishment—or far worse:

An Illinois lawyer was suspended from practice for uttering an expletive under her breath while in open court. After rolling her eyes and complaining that a judge's ruling was "f— bull—" she has been suspended from practice in Chicago federal court for 90 days. The executive committee of the Northern District of Illinois imposed the suspension on Chicago-area lawyer Alison Motta in an order made public May 12, 2017, and reported in the Chicago Tribune.

A lawyer in Nebraska was suspended for making Facebook comments to his client that included "Relax" and "We've got this in the bag." (In full disclosure, I feel this sanction was partly about the fact that the lawyer's communication with the client was found to be inadequate to fulfill the duty to sufficiently inform the client of the status of their matter, and less about how the lawyer expressed himself to the client.) This April 27 opinion  was noted by the Legal Profession Blog and the Omaha World-Herald.

Does outcome always justify everything that happens on the road to victory? Consider the question, remember these cautionary tales, and think before you speak.

Florence M. Johnson is a partner in the firm of Johnson and Johnson, PLLC, in Memphis, Tennessee. She is also chair of the Minority Trial Lawyer's Practice Points subcommittee in the Section of Litigation.