I previously wrote about the highly improper threats made against the Supreme Court by Senate Minority Leader Chuck Schumer (D., N.Y.). Schumer is now facing both complaints in the Senate and in the New York bar. The Senate has a legitimate concern about a member threatening the Court with retaliation if it does not rule in the way that he favors. However, as my column noted, Senator Whitehouse and others have made the same type of threats. Any censure or sanction remains a matter for the Senate but it would have to distinguish between Schumer’s statements and past hyperbolic statements of other senators. My main concern is the the bar complaint against Schumer. Despite my stated and strong disapproval of his threats against Associate Justice Neil Gorsuch and Brett Kavanaugh, I do not believe that this is a matter for the New York bar. Indeed, I view the effort as a threat to protected political speech.
Attorney Joseph Gioconda sent a letter of complaint to New York’s Grievance Committee for the Second Judicial District stating that “[a]t a minimum, Attorney/Senator Schumer’s statements appear to be improper conduct that reflects upon his character and fitness to practice law in New York.”
The conservative National Legal Policy Center also filed complaints with both the New York bar and the Senate Ethics Committee. In its bar complaint, it argued that Schumer’s “conduct . . . is prejudicial to the administration of justice.”
I have previously objected to this type of bar action used against public officials for conduct deemed inappropriate or offensive.
The NLPC alleged that Schumer violated New York’s Rules of Professional Conduct through “conduct that is prejudicial to the administration of justice.” That reference to Rule 8.4 adopts a sweeping scope that is not evident in either the language or the past interpretations. Indeed, the ABA comments shows that the focus is on the “practice of the law” which is defined in the comments:
“Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law.”
The comments do reference public office:
“Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers. The same is true of abuse of positions of private trust such as trustee, executor, administrator, guardian, agent and officer, director or manager of a corporation or other organization.”
However, nothing in the rule suggests that the Bar is claiming the right to monitor legislative or political statements. In this matter, Schumer was clearly speaking as a legislator. He later apologized, though the apology seemed more like a curious road rage defense. Yet, if the New York bar is claiming the authority to monitor such reckless political comments, it would delve deeply into the regulation of political speech. It would also invite arbitrary and partisan enforcement by the Bar, which is viewed as overwhelmingly both liberal and Democratic. The same could be true for a more conservative state bar which could use its ethics review boards to pursue liberal members. These are not statements that go to the practice of law but the practice of politics.
Schumer’s comments were as moronic as they were menacing. However, they were not unethical as a matter of the New York bar.