State Bar Complaints about Political Speech

Florida Congressman and lawyer Matt Gaetz is the latest public figure slash lawyer to be targeted over something incredibly stupid that he or she said or did. In Representative Gaetz’s case, the stupid was tweeting a comment that appeared to be aimed at dissuading a witness from testifying before a congressional committee.  The Florida Bar has properly acknowledged receipt of this complaint and that an investigation of Gaetz is underway.

State Bar complaints  (or grievances, as they are known is some states) have also been filed against Kellyanne Conway and Jeff Sessions, based largely on the theory that their alleged public misrepresentations violated their duty of honesty as lawyers. More than one ethics lawyer has found the Conway complaint ill-founded, notably Steven Lubet, and the law professors who filed apparently acknowledged that bar complaints targeting public speech could lead to “mischief or worse.” While enforcing ethics rules, the discipline systems are not the ethics police; they are consumer protection agencies charged with protecting against unfit practitioners who are or might harm clients.  Policing political speech is far removed from their priority list. Complaints based on dishonest political speech are not likely to gain traction with the State Bar of California, except as noted below.

Representative Gaetz presents a different case.  When speech can be a crime, as in speech intended to dissuade a witness from testifying, or extortion, the regulatory agencies take notice.  The public’s confidence in the legal profession requires that criminal conduct by attorneys be sanctioned, reflected in Rule of Professional Conduct 8.4(b).  Thus, the extremely prompt response from the Florida Bar that merited scorn from the Congressman’s chief of staff. Did Representative Gaetz believe that he was just throwing out some partisan red meat? Because he is a lawyer, his intent should be scrutinized closely.

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