More on Thin-Skinned Judges

Here is an essay I wrote for American Lawyer Publications about 20 years ago. It is about an absurd disciplinary ruling by the Indiana Supreme Court, suspending a lawyer for including a mildly impolite footnote in an appellate brief. In an ironic judicial instance of the "Streisand Effect," the ruling drew far more attention to the footnote -- and the court's hyper-sensitivity -- than it would have gotten otherwise.

A Footnote Most Foul

When Michael Wilkins, an experienced Indiana appellate lawyer, agreed to serve as local counsel for a Michigan insurance company, he had no idea that the case would land him in deep trouble with his state supreme court. And when he submitted his client's brief - written by their Michigan lawyers, but reviewed and signed by Wilkins - he never expected that a mildly aggressive footnote would be declared so "scurrilous and intemperate" that it would get him clocked with a 30-day suspension.

Every lawyer knows stories about thin-skinned judges, easily angered by trivial or imaginary affronts. But the Indiana Supreme Court opinion in In re Wilkins takes judicial hubris to a new extreme.

Because Wilkins allowed one sentence in a brief that challenged the intellectual consistency of an appellate court opinion, the state supreme court, by a 3-2 majority, ordered Wilkins suspended from practice for a month. Such harsh discipline would be an extraordinary penalty for even the most boorish advocacy, so you might assume that the errant lawyer resorted to personal insults or foul language. But in fact he just tried to present his case forcefully.

Seeking discretionary review of an adverse appellate decision in an insurance case, Wilkins filed a petition for transfer (the local equivalent of a writ of certiorari) with the Indiana Supreme Court. He argued in his supporting brief that the appeals court erred badly in ruling against his client, materially misstating the record and ignoring relevant precedents. These claims will sound familiar to anyone who has ever lost a case, and, in fact, the applicable Indiana appellate rule requires comparable allegations as a basis for appeal.

But the brief included a fatal footnote that drew the Supreme Court's ire. Here, in toto, is what it said:

"Indeed, the Opinion is so factually and legally inaccurate that one is left to wonder whether the Court of Appeals was determined to find for the [Appellee], and then said whatever was necessary to reach that conclusion (regardless of whether the facts or the law supported its decision)."

That was poor advocacy, to be sure, more likely to annoy than persuade, but it is hardly shocking language among consenting adults. You cannot appeal from a ruling without criticizing it, and Wilkins' brief basically said that the appellate court opinion was so bad as to cause consternation. He was obviously hoping that the overstatement would grab the Supreme Court's attention, which is not an unheard-of tactic when petitioning for discretionary review.

He got the court's attention all right, but not the way he hoped. The Supreme Court not only denied the petition; it struck the supporting brief as a "scurrilous and intemperate attack on the integrity" of the lower court. A disciplinary proceeding followed that eventually resulted in Wilkins' suspension (the lead Michigan lawyer has also been barred from the Indiana courts).

The majority decided that Wilkins' words violated Indiana Professional Conduct Rule 8.2(a), which prohibits false statements "concerning the qualifications or integrity of a judge" or judicial panel. To justify this determination, the majority concluded that the offending footnote "suggested unethical motivations" and "deliberately unethical conduct" on the part of the lower court judges by alleging that they "may have been motivated in their decision making by something other than the proper administration of justice."

So subversive was the footnote, according to the majority, that it threatened to "weaken and erode the public's confidence in an impartial" judiciary.

That is an astonishing stretch, reading sinister implications into a statement that one dissenting justice characterized as nothing more than "rhetorical hyperbole incapable of being proved true or false." The footnote is open to many possible innocent constructions, falling far short of the malign innuendo perceived by the Supreme Court's majority. The appeals court might have been "determined to find" for the appellee for reasons having nothing to do with unethical conduct.

Perhaps the footnote implies that the court acted on an intuitive sense of justice, out of inadvertence or inattention, or based on considerations of efficiency. None of these suggestions would impugn the court's integrity, although they might provide grounds for reversal. Indeed, there are entire schools of thought – Legal Realism, Critical Legal Studies - based on the premise that all judging is inevitably outcome-oriented, and another school of thought - Law and Economics - posits that it should be.

Nonetheless, the Indiana Supreme Court fastened on the specter of "unethical conduct" - words that, by the way, never appear in the brief - in order to conclude that the "scurrilous" statement violated a disciplinary rule.

The First Amendment protects not only freedom of speech, but also the right to "petition the government for a redress of grievances," which would surely seem to cover an appeal to a higher court. The right to complain about government officials was a bold idea in the 18th century, when European monarchs had no obligation to listen to the grievances of their subjects, but it should not be controversial, much less professionally perilous, today.

In response to Wilkins' First Amendment claims, the Supreme Court held that the "interest in preserving the public's confidence in the judicial system ... far outweighed any need for the respondent to air his unsubstantiated concerns." Of course, this completely begs the First Amendment question. His concerns can be called unsubstantiated only because the majority strained to construe them that way, reinterpreting the footnote as an allegation of unethical conduct rather than garden-variety ineptitude.

Thus it was a rigged balancing test in which the lawyer's interests were virtually defined out of existence. Exercising the sole power to decide whether a claim is substantiated - indeed, holding sole power to characterize the claim itself - the majority left little or no real breathing room for free expression.

Worst of all was the majority's approach to the penalty. Wilkins had made several attempts to apologize to both the Indiana Court of Appeals and the Indiana Supreme Court, acknowledging that his footnote was "overly aggressive and inappropriate and should never have made its way into our brief." He repeated his apologies during the disciplinary proceeding.

This was not good enough for the majority, however, because Wilkins continued to maintain that he "believes in the substance of the language contained in the footnote." In other words, it was not sufficient for him to retract the offending statement; he had to purge his mind of the offending thoughts as well. Because he evidently declined to stop thinking that he was right about his case, the majority determined that he had to be disciplined more harshly than his record - which was described as "outstanding and exemplary" - would otherwise warrant.

Now, judges may have the authority to control what a lawyer can say in court. But it is a sad day when they seek to constrain his very thoughts. The demand for abject recantation calls several historical parallels to mind, but they are best left unexpressed.

As of this writing, Wilkins has petitioned the Indiana Supreme Court for reconsideration and a stay of his suspension. He may eventually seek review by the U.S. Supreme Court if the state court does not relent.

t is ironic to see a lawyer disciplined for such relatively mild language when prominent judges frequently dish it  out in much stronger terms. As one dissenting Indiana justice pointed out, U.S. Justice Antonin Scalia is well known for lambasting his colleagues without reserve. He once commented, for example, that an opinion by Justice Sandra Day O'Connor was "irrational" and that her stated views "cannot be taken seriously." Needless to say, he was not suspended for his caustic words.

Under the widely respected leadership of its chief justice, the Indiana Supreme Court enjoys a national reputation. The court is generally known for thoughtful innovation, not defensiveness. So it is baffling that the majority, including the chief, found a mere footnote so threatening to judicial dignity.

The brief in question could not have been read by more than a dozen or so people. But the judges' disproportionate reaction has already been reported by both the local press and The New York Times, as well as on various Web sites, probably doing more harm to the court's reputation than any number of rude footnotes.

If anything "weakens and erodes public confidence in the judiciary," it is the perception that judges are imperious, taking umbrage at minor slights and unwilling to tolerate pointed criticism. Courts have the power to compel deference, but they should never mistake self-importance for dignity.

Perhaps Indiana is an exceptionally decorous place, where formal manners still prevail and deportment is rigidly enforced. Even so, the majority would probably not be thrilled to learn that their opinion echoes a famous quote from Chicago's late Mayor Richard J. Daley. In a typical overreaction to his adversaries, he once fumed, "They have vilified me, they have crucified me, and, yes, they have even criticized me." The mayor neglected to add, of course, that his critics were well within their constitutional rights.