Attorney speech can be regulated by Rules of Professional Conduct – N.C. Court of Appeals

North Carolina State Bar v. Sutton. Defendant, a lawyer, appealed from a disciplinary proceeding concerning alleged misconduct over several years and in several cases. Specifically, seven different instances:

  1. Defendant repeatedly interjected in a deposition; said to opposing counsel: “Fagan, you know what your problem is? Your problem is that you need a boyfriend or a husband or something. . . . I understand your client goes both ways so . . . maybe you could have a little lickety-lick with her.” Defendant also built a website about the matter, denied making it even though he was the registrant and paid the fees, posted to it, and was the contact person on the site.
  2. Defendant repeatedly interjected in a deposition; claimed a statement by the opposing attorney was “damn lie” and terminated depo. Defendant also lied about the dissolution of a company and claimed opposing counsel added language to settlement without his knowledge, even though he had knowledge.
  3. Defendant shouted and accused prosecutor of introducing inadmissible evidence in front of a jury.
  4. Defendant posted a YouTube video confronting and accusing a Sheriff’s investigator of criminal conduct – just to be a “smart aleck.” Defendant also contacted an investigator and the Sheriff directly, knowing they were represented by counsel, accused them of violating his clients rights and demanded $3 million.
  5. Defendant called a phone number on witness’s phone records list. He then, to the stranger on the call, accused the witness of hitting on his client’s wife who he said had “big boobs” and ran a prostitute website.
  6. Defendant left a voicemail to the investigator in child abuse case saying “You obviously don’t know what the hell you’re doing. So I’m just gonna whoop your ass real bad next week unless you get your ass down there and get this case dismissed. And do your job and have some sense.”
  7. Defendant left voicemail for his own client, the daughter of a county Sheriff, following an arrest by the Sheriff of other county. He said he had been handling her case “as a favor to your dad when I thought that he wasn’t trying to f*** me too, but I can’t do that anymore, and I don’t know that you need to be in my office or I need to have y’all around.” Defendant also made explicit and crude comments during the voicemail regarding the sheriff, his wife, and the Pitt County district attorney.” He later demanded immediate payment and quit representing the client.

So, that’s not a great start.

Defendant, among other arguments which I won’t address here, asserted that the Rules of Professional Conduct are unconstitutional (facially or as applied) because they punished him for speech protected by the First Amendment. Even though he failed to support the argument and waived the issue on appeal, the Court of Appeals still took the opportunity to give an overview of the limits of the First Amendment as it relates to attorneys:

Nevertheless, we take this opportunity to reject Defendant’s categorical assertion that the First Amendment provides attorneys with blanket immunity from facing disciplinary sanctions for violating the ethical rules applicable to lawyers in North Carolina simply because those violations involve some form of speech. As a general proposition, the First Amendment does not immunize an attorney from being disciplined for violating the Rules of Professional conduct simply because the attorney employs “speech” in committing the violations. As with all constitutional rights, the right to free speech is not absolute.

While it declined to go through the particular actions of the Defendant in the context of the First Amendment, I think the overall tenor of the opinion makes clear that enforcing the Rules in this instance would not violate the First Amendment.

In balancing the First Amendment rights of attorneys against the ability of states to discipline attorneys for unethical conduct, courts are to “engage[ ] in a balancing process, weighing the State’s interest in the regulation of a specialized profession against a lawyer’s First Amendment interest in the kind of speech that was at issue.” The Supreme Court has explained that “[s]tates have a compelling interest in the practice of professions within their boundaries, and as part of their power to protect the public health, safety, and other valid interests they have broad power to establish standards for licensing practitioners and regulating the practice of professions.”

Moreover, “[t]he interest of the States in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been ‘officers of the courts.’ ” As such, the Supreme Court has recognized the substantial interest possessed by states both in “protect[ing] the integrity and fairness of a State’s judicial system,” and in “protect[ing] the flagging reputations of . . . lawyers by preventing them from engaging in conduct that . . . is universally regarded as deplorable and beneath common decency . . . ”.

(citations omitted).

The court concluded by literally refusing to address the specifics of this case, saying “judicial resolution of such questions may only occur in cases where, unlike here, the issues have been properly presented to the court.”

I do think it would be interesting to see a more specific, more relatable and recent case brought to the Court of Appeals on this issue. Alas, it will have to wait.