Controversial lawyer Geoffrey Fieger has lost a critical appeal before the United States Court of Appeals for the Sixth Circuit, which reversed a lower court decision in his favor. At issue is a state code requiring “civility for lawyers in their dealings with judges. In a 2-1 decision, the appellate panel ruled that the requirement is not is not unconstitutionally vague.
The case stems from an incident in 1999 after the state Court of Appeals earned Fieger’s ire with a ruling that overturned a $15-million jury verdict Fieger won for a client in a medical malpractice case. Fieger took to his radio show to blast the judges with vulgarity.
In his statements, Feiger proclaimed “Hey Michael Talbot, and Bandstra, and Markey, I declare war on you. You declare it on me, Ideclare it on you. Kiss my ass, too.” He then observed “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.”
He was charged by the Michigan Attorney Grievance Commission with violating the courtesy and civility provisions of the Michigan Rules of Professional Conduct. While he agreed to a public reprimand, he reserved the right to challenge the “civility” provisions on free speech grounds.
The federal district court struck down the law after the Michigan Supreme Court upheld it.
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.” Finally, Mr. Fieger said, “They say under their name,
‘Court of Appeals Judge,’ so anybody that votes for them, they’ve changed their name from, you know, Adolf Hitler and Goebbels, and I think–what was Hitler’s–Eva Braun, I think it was, is now Judge Markey, she’s on the Court of Appeals.”
These civility rules do raise some serious questions of free speech and vagueness. Judges increasingly use gag orders almost by reflex and have become used to regulating speech outside of their courtroom. Fieger is hardly a sympathetic figure for such an appeal and his conduct was both uncivil and unhinged. However, it is not clear why judges should not be subject to open criticism by counsel. For an earlier blog, click here.
For the court’s opinion, click here.
For the full story, click here.
It’s hard to evaluate a free speech case in the absence of the language. Here’s the cited language from the opinion. I’ll leave it to the other regulars to see if this is protected speech or not:
“Three days later, on August 23, 1999, Mr. Fieger, in a tone similar to that which he had exhibited during the Badalamenti trial and on his then-daily radio program in Southeast Michigan, continued by addressing the three appellate judges in that case in the following manner, “Hey Michael Talbot, and Bandstra, and Markey, I declare war on you. You declare it on me, Ideclare it on you. Kiss my ass, too.” 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.” Finally, Mr. Fieger said, “They say under their name,
‘Court of Appeals Judge,’ so anybody that votes for them, they’ve changed their name from, you know, Adolf Hitler and Goebbels, and I think–what was Hitler’s–Eva Braun, I think it was, is now Judge Markey, she’s on the Court of Appeals.”
IMHO Jeff Feiger has taken the inevitable trip that all lawyers who try their cases in the media take — from attorney to arrogant.